Bombay High Court
Chandu Dayal Karmankar And Others vs Ganpat Dayal Karmanakar And ... on 10 August, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6243/2015
1. Chandu Dayal Karmankar,
aged about major, Occu. Agriculturist.
2. Deorao Dayal Karmankar,
aged about major, Occu. Agriculturist.
3. Rajendra Dayal Karmankar,
aged about major, Occu. Agriculturist.
4. Baban Dayal Karmankar,
aged about major, Occu. Agriculturist.
All R/o Yergawhan, Tq. Rajura,
Distt. Chandrapur. ..Petitioners.
..Vs..
1. Ganpat Dayal Karmankar,
aged about major, Occu. Agriculturist.
R/o Bamanwada, Tq. Rajura,
Distt. Chandrapur.
2. The Additional Commissioner,
Nagpur Division, Nagpur.
3. The Collector, Chandrapur.
4. The Sub-Divisional Officer,
Rajura.
5. The Tahsildar,
Rajura.
6. The Talathi,
Dewada, Tq. Rajura,
Distt. Chandrapur. ..Respondents.
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Shri S.A. Deo, Advocate for the petitioners.
Shri P.J. Mehta, Advocate for respondent No.1.
Shri N.R. Patil, A.G.P. for respondent Nos.2, 4 and 5.
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CORAM : S.C. GUPTE, J.
DATE : 10.8.2017.
ORAL JUDGMENT
1. Heard the learned counsel for the parties.
2. Rule. Taken up for hearing forthwith by consent of counsel for all
parties.
3. The petition concerns a mutation entry in respect of a land
purchased by a tenant under Section 38 of the Hyderabad Tenancy and
Agricultural Lands Act, 1950. The petitioners claim to be tenants having
exercised their option for purchase of the holding under Section 38(1) of the
Act. The mutation effected in favour of the petitioners pursuant to this
purchase was challenged by respondent No.1, who claims to be a tenant in
respect of the subject holding jointly with the petitioners. His claim was
originally rejected by the Sub-Divisional Officer. In his appeal, the Collector,
however, remanded the matter for a fresh enquiry to the Tahsildar, Rajura.
The Tahsildar allowed the application of respondent No.1 directing a mutation
entry in respect of the purported tenancy of respondent No.1 along with others
including the petitioners. The Sub-Divisional Officer, in appeal, confirmed this
order. The petitioners' further appeal before the Additional Collector,
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Chandrapur was also rejected. The petitioners thereafter preferred a revision
before the Additional Commissioner, Nagpur, who rejected it. The petitioners
have, in the premises, approached this Court by way of the present writ
petition. It is the grievance of the petitioners that all the Authorities below
have erred in accepting the alleged right of respondent no.1 as a tenant of the
suit property jointly with the petitioners, claiming under the original tenant,
who was the father of both the petitioners and respondent No.1. It is
submitted that the Authorities have all overlooked the fact that the petitioners,
as tenants, had exercised their right to purchase the land under Section 38 of
the Act and were declared as owners thereof by the Tribunal, and without
challenging this order passed by the Tribunal, it was impermissible to seek a
mutation of the record of rights based on the original tenancy of the
predecessor of the parties.
4. It is borne out by the record in the present case that originally one
Dayal Gana Karmankar, father of both petitioners and respondent No.1, was a
tenant in respect of the subject land. The petitioners claim tenancy through
Dayal, who died on 20th December, 1985. The petitioners, as such tenants,
applied for purchase of the land under Section 38 of the Act. Section 38
permits both protected tenants and ordinary tenants to purchase the land
holder's interest in the land held by them, whether as protected tenants or, as
the case may be, ordinary tenants. By an order dated 31 st January, 1996,
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Tahsildar (Encroachment), Rajura passed an order declaring the petitioners to
be tenants within meaning of Section 38(1) of the Act and permitted the
petitioners to apply for purchase of land through a sale certificate. The
petitioners, after following the procedure laid down in Section 38 of the Act,
applied to the Tribunal for determination of the price. The Tribunal
determined the price and upon deposit of this price, issued a certificate in the
prescribed form to the petitioners as ordinary tenants under Sub-section (6) of
Section 38 of the Act. It appears that on the basis of the sale certificate issued
in favour of the petitioners, the land was mutated in the record of rights in the
name of petitioners. The mutation appears to have been challenged by
respondent No.1 inter alia on the ground that Dayal was a protected tenant of
the land in question and respondent No.1 being his legal heir along with
petitioners, was having a right and share in the land and, therefore, his name
should also have been mutated in the record of rights in respect of the land
along with the petitioners. By his order dated 18 th March, 2010, Tahsildar,
Rajura, upon remand, allowed the application of respondent No.1 for mutating
the record of rights in his favour and entered his name in the record of rights in
addition to the names of petitioners. This order has been confirmed, as noted
above, by all revenue authorities, the last of such orders being the order passed
by the Additional Commissioner, Nagpur, in revision.
5. It is apparent from the orders passed by the Authorities below and
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in particular, the order of the Additional Commissioner in revision, that the
basis of passing these orders was the status of Dayal as a protected tenant. On
the basis of the protected tenancy of Dayal, the Authorities have proceeded to
direct the mutation by entering the name of respondent No.1 as legal heir of
Dayal along with the petitioners. There is nothing on record to show that
Dayal was a protected tenant within the meaning of Section 34 of the Act. One
fails to understand on what basis a deemed purchase order can be passed
within the meaning of Section 38E of the Act, if Dayal and his family were not
protected tenants, in the first place. The orders evidently, thus, suffer from a
serious error of law.
6. If respondent No.1 is aggrieved by the fact that since he was a legal
heir of the deceased tenant Dayal as much as the petitioners, who are his step-
brothers, the application of the petitioners for purchase of land for themselves
alone under Section 38 of the Act could not have been considered by the
Tribunal and that respondent No.1 also ought to have been permitted to apply
for such purchase, his remedy clearly lies elsewhere. The sale certificate is
issued by the Agricultural Lands Tribunal constituted under Section 87 of the
Act. Any order passed by the Tribunal under the Act (which will include an
order passed under Section 38) is appeallable before the Collector under
Section 90 of the Act. That was the proper forum for the challenge. This is
not a matter to be determined by the Revenue Authorities in an exercise
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concerning mutation.
7. The impugned orders accordingly cannot be sustained. Rule is
accordingly made absolute in terms of prayer clauses (I), (II) and (III) of the
petition and the revision filed by the petitioners, being Revision
No.35/R.T.S.64/2013-2014, is allowed and the order of Tahsildar, Rajura
dated 18th March, 2010 is quashed and set aside. It is, however, clarified that
setting aside of the original mutation order passed by the Tahsildar, Rajura on
18th March, 2010 shall not prevent respondent No.1 from approaching the
Collector under Section 90 of the Act, challenging the sale certificate issued by
Tahsildar, Rajura as Chairman of the Agricultural Lands Tribunal, Rajura under
Section 38(6) read with Section 38(5) of the Act.
JUDGE
Tambaskar.
