Shamsunder S/O Pandharinath ... vs Wasudeo Ganpati Bobde
2004 Latest Caselaw 226 Bom

JUDGMENT

S.T. Kharche, J.

1. The short question that arises for consideration in this writ petition is, whether the respondent was a protected tenant and the certificate issued by the Tenancy Tahsildar would be the conclusive proof and on that basis mutation entry could be recorded and certified by the Revenue Inspector in the land records?

2. Relevant facts are as under :

The petitioner is the original owner of the agricultural land of which the respondent claims to be a protected tenant and, therefore, he filed an application before the Talathi for recording mutation entry in his name on the basis of the certificate issued by the Tenancy Tahsildar under the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short the Tenancy Act). The mutation entry was recorded which was certified by the Revenue Inspector in Mutation Entry No. 259 on 22.2.1983. The petitioner/ owner being aggrieved by the certification of the said imitation entry had carried appeal to the Sub-Divisional Officer under Section 247 of the Maharashtra Land Revenue Code, 1966 (for short the Code). The Sub-Divisional Officer by his order dated 18.3.1986 dismissed the appeal and the petitioner being aggrieved by this order carried second appeal to the Resident Deputy Collector. The second appeal came to be decided by the Resident Deputy Collector on 28.12.1987 and he allowed the appeal. Thereafter, the respondent preferred Revision before the Commissioner which came to be decided on 28.2.1991. The Additional Commissioner allowed the Revision setting aside the finding of the Resident Deputy Collector and restored the order passed by the Sub-Divisional Officer. The Additional Commissioner while setting aside the order passed by the Resident Deputy Collector, upheld certification of the Mutation Entry No. 259. This order is under challenge in this petition.

3. Mr. Badiye, learned Counsel, for the petitioner contended that there were no tenancy proceedings started in accordance with the provisions of the Tenancy Act. The certificate of ownership issued by the Tenancy Tahsildar is fake and bogus. He contended that no notice was served upon the petitioner nor any opportunity of hearing was given to him in the so-called tenancy proceedings on the basis of which the certificate has been issued. In absence of the prescribed procedure, being followed for declaring the tenant as the owner of the disputed land, it cannot be said that the mutation entry recorded on the basis of the certificate is legal and valid. He contended that, the disputed land has already been acquired by the Western Coal Fields Ltd. and the compensation for the same is to be disbursed on the basis of the mutation entry erroneously recorded in favour of the respondent and, in such circumstances, the impugned order passed by the Additional Commissioner cannot be sustained in law and deserves to be set aside and that of the Resident Deputy Collector needs to be restored.

4. The learned Counsel for the respondent supported the order passed by the Additional Commissioner and prayed for dismissal of the writ petition.

5. I have carefully considered the contentions canvassed by the learned Counsel for the parties. It is not in dispute that Mutation Entry No. 259 in respect of the agricultural land was certified by the Revenue Inspector on 22.2.1983. It is also not in dispute that the petitioner is the owner of old Survey No. 216-A of Sasti, now new Survey No. 315, and 316, area 3.31 and 1.38 hectares, total 11.35 acres, rental Rs. 9.62 and Rs. 5.82 respectively and the respondent claims to be the protected tenant of that land. It is also not in dispute that the mutation entry was certified on the basis that the respondent was protected tenant and he has become the owner thereof as per the sale certificate registered vide No. 64 dated 3.2.1983 (Khata No. 87, Register No. 7 dated 3.2.1983) issued under Sub-section (5) of Section 38 of the Tenancy Act. The Certifying Inspector, Rajura, certified the entry on 5.3.1983 stating that "upon service of notice Wasudeo (the respondent) is present. As per possession and the registered sale-deed the mutation is certified."

6. The Sub-Divisional Officer dismissed the appeal filed by the petitioner on 18.3.1986 wherein he has observed that the sale certificate issued under Sub-section (5) of Section 38 of the Tenancy Act is the conclusive proof to show that the respondent was the protected tenant. The. Resident Deputy Collector allowed the second appeal mainly on the ground that no prescribed procedure was followed for declaring the tenant as an owner and no case was registered as per the provisions of Section 38-A of the Tenancy Act. The Additional Commissioner has considered the aforesaid aspects of the matter and observed that the respondent is a protected tenant and was in possession of the suit land. The entry in the village form 7/12 extract pertaining to the year 1964-65 in respect of Survey No. 216/A shows that his name is recorded in the entry as a tenant in the column of cultivation. The possession of the tenant was not challenged by the owner and moreover the owner admitted that the respondent was a protected tenant. A certificate declaring the applicant as the owner of the suit land was issued on 2.2.1983 under Sub-section (6) of Section 36 of the Tenancy Act. The Additional Commissioner further observed that he has no jurisdiction to decide the issue of tenancy and that case involves only the certification of the mutation entry. If the owner/petitioner really wishes to challenge the certificate granted under Sub-section (6) of Section 38 of the Tenancy Act then the original owner was at liberty to approach the competent forum. But as the situation showed that on the date of certification of the mutation entry, the sale certificate was standing in the name of the respondent/tenant as an owner thereof, which was the conclusive proof, the certification was legal and valid especially when the original owner admitted that the respondent was a protected tenant.

7. Sub-sections (3), (4), (5) and (6a) of Section 38 of the Tenancy Act are relevant and they contemplate as under :

38(3) If the landholder refuses or fails to accept the offer and to execute a sale-deed within three months from the date of the offer, the protected tenant [or as the case may be, ordinary tenant] may apply to the Tribunal for the determination of the reasonable price of the land.

[(4) On receipt of an application under Sub-section (3). the Tribunal shall give notice to the applicant and the land-holder and to all persons who appear to the Tribunal to be interested, of the date, time and place at which the Tribunal will enquire into the application and shall determine the reasonable price of the landholder's interests in the land not exceeding the maximum multiple of rent provided in Sub-section (2) [or (2A) in conformity with such rules as may be prescribed] [and shall determine the amount of encumbrances lawfully subsisting on the land in the manner provided in Section 38A]:

Provided that where in the opinion of the Tribunal the reasonable price determined under this sub-sections, does not sufficiently recompense the landholder for the value of the improvements made by him, such as sinking a well, it shall be competent for the Tribunal after taking into account the value of the contribution of the protected tenant [or. as the case may be, ordinary tenant] towards the improvements, if any, to add such further sum as it considers adequate to the price so determined.

[(5) The protected tenant [or, as the case may be, ordinary tenant] shall deposit with the Tribunal the amount of the price determined under Sub-section (4)-

(a) either in a lump sum within the period fixed by the Tribunal, or

(b) in such instalments not exceeding sixteen and at such intervals during a period not exceeding eight years and on or before such dates as may be fixed by the Tribunal in each case.

[in such annual instalments not exceeding twelve and on or before such date as may be fixed by the Tribunal in relation to an offer under Sub-section (2A):

Provided that during any period for which payment of rent is suspended or remitted under Section 18. the tenant shall not be bound to pay the purchase price in lump sum or the amount of any instalments fixed under this section or any interest thereon, if any] :

Provided further that when the reasonable price fixed by the Tribunal is payable in instalments, the protected tenant [or, as the case may be. ordinary tenant] shall in addition to the instalments be liable for the payment of the land revenue due to the Government on the land till the instalments are paid.

(6)(a) On deposit or recovery of the entire amount of the reasonable price being made, the Tribunal shall issue a certificate in the prescribed form to the protected tenant [or, as the case may be, ordinary tenant] declaring him to be he purchaser of the land such certificate shall be conclusive evidence of the sale as against the landholder and all persons interested therein :

Provided that if the application of the protected tenant [or, as the case may be, ordinary tenant] relates to an 'Inam', the Tribunal shall not issue such certificate unless previous sanction of Government has been obtained therefor.

8. At this juncture, it is necessary to reproduce Section 38-E of the Act which deals with the ownership of lands held by protected tenants which are deemed to have been transferred to them from a notified date. This section contemplates as under :

38E. (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 arid 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 landholders 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 land-holder 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 :

Provided further that where in respect of any such land, any proceeding under Sections 19, 19A, 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 retaining possession of the land in accordance with the decision in such proceeding].

[Explanation. If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tahsildar as provided in Section 32 is not in possession of the land on the date of the notification issued hereunder then for the purpose of the sub-section, such protected tenant shall, notwithstanding any judgment, decree or order of any Court, or the order of a Revenue Board or Revenue Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tahsildar shall notwithstanding anything contained in the said Section 32, either suo motu or on the application of the protected tenant held summary enquiry and direct that such land in possession of the land holder or any person claiming through or under him in that area, shall be taken from the possession of the land-holder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant had held the land on the date of such notification with the modification that in Sub-section (8), for the words, figures and brackets "Within 90 days from the date specified in the notification under Sub-section (1)" the words, figures and brackets "Within 90 days from th date of restoration of the possession under the Explanation to Sub-section (1)" shall be substituted).

(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.

9. Sub-section (2) of Section 38E of the Act clearly contemplates that 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 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.

10. The certificate which has been issued by the Tribunal in favour of the respondent/tenant would be the conclusive evidence to show that the protected tenant has become the owner of the land with effect from the date of certificate as against the landholder and all other persons having interest therein. When the certificate is admittedly issued on 2.2.1983 under Sub-section (6) of Section 38 of the Act, it is not possible to accept the submission of Mr. Badiye, learned Counsel for the petitioner, that this certificate was either fake or false and that no tenancy case was registered, no proceedings were held and therefore, no reliance could be placed on the certificate. Admittedly, the petitioner/original owner did not prefer any appeal or revision, as the case maybe, as per the provisions of Section 90 of the Tenancy Act against the decision of the Tribunal and therefore, it is obvious that the respondent has become owner of the said land by virtue of the certificate which has become final.

11. The next submission of Mr. Badiye, learned Counsel, for the petitioner is that no notice was Issued to the petitioner while making the certification of the mutation entry and, therefore, the matter may be remanded to the Sub-Divisional Officer for fresh enquiry in accordance with law. On close scrutiny, this Court is of the considered opinion that this submission is misconceived and cannot be accepted. The Additional Commissioner rightly observed in his order that the respondent was a protected tenant in whose favour the certificate was issued on 2.2.1983 under Sub-section (6) of Section 38 of the Act and it was admitted position that the respondent was a tenant in possession of the land. In such circumstances, this Court does not find any error of law or illegality in the order passed by the Additional Commissioner and it is clear that the respondent was the protected tenant and the certificate issued under Section 38(6)(a) of the Tenancy Act should be made the basis for certification of mutation entry. Therefore, there is no merit in the petition which is liable to be dismissed. Consequently the writ petition is dismissed with no order as to costs. Rule is discharged.