Bombay High Court
Shankar Laxman Kurule And Others vs The State Of Maharashtra And Others on 16 October, 2025
2025:BHC-AUG:29522
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11222 OF 2025
1. SHANKAR S/O. LAXMAN KURULE
2. DEVIDAS S/O. GANPATI KURULE
3. SOJARBAI W/O. LAXMAN KURULE
4. SHRIRAM S/O. MOHAN JADHAV
5. BHASKAR S/O. UTTAMRAO JADHAV
6. MADHUKAR S/O. UTTAMRAO JADHAV
7. SADASHIV S/O. UTTAMRAO JADHAV
8. MAHADEO S/O. UTTAMRAO JADHAV
9. SHAHADEO S/O. UTTAMRAO JADHAV
10. SURESH S/O. UTTAMRAO JADHAV .. Petitioners
VERSUS
1. THE STATE OF MAHARASHTRA,
REVENUE AND FOREST DEPARTMENT,
MANTRALAYA, MUMBAI
2. SHAIKH SABIYA ANJUM SHAKIL
THROUGH ITS GENERAL POWER OF
ATTORNEY HOLDER,
POOJA SHASHIKANT DESHBHRATAR
3. THE DISTRICT COLLECTOR,
TQ. & DIST. BEED
4. THE TAHSILDAR, BEED .. Respondents
...
Advocate for the Petitioners : Mr. S. S. Kazi
AGP for Respondent / State: Mr. Rajdeep D. Raut
Advocate for Respondents No.2: Mr. R. N. Dhorde, Senior Advocate
i/b. Mr. S. E. Shekade
...
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CORAM : ARUN R. PEDNEKER, J.
Reserved On : 19.09.2025
Pronounced On : 16.10.2025
JUDGMENT:
1. Heard. With consent of the parties, the matter is taken up for
final hearing.
2. By the present petition the petitioners are challenging the
order dated 04.09.2025, passed by the Tahasildar, Beed in proceeding
no.2025/KUL/KAVI4012, thereby cancelling the entries in the mutation
record and all other government offices in respect of land survey no.19
bearing Gut No.24, 25, 26, 27, 28, 29 and survey no.20 having Gut
No.15, 16, 17, 18, 19, 20, 21, 22 and 23, situated at Mouje Talegaon,
Distirct Beed, by cancelling the certificate dated 01.09.1960 issued under
Section 38(E) of the Hyderabad Tenancy and Agricultural Land Act,
1950 (for brevity "the 1950 Act") .
3. The case in brief of the petitioners is that in a proceeding
initiated under Section 38(E) of the 1950 Act, name of Ganpati Kundlik
Kurule and Abaji Ramji Jadhav were recorded in the abstract of protected
tenancies part one Namuna No.5 on 15.09.1957 in respect of land survey
no.19, admeasuring 19 Acres 22 Are and survey no.20, admeasuring 21
Acres 04 Are. The occupancy price was deposited by the tenant namely
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Ganpati Kundlik Kurule and Abaji Ramji Jadhav on 03.05.1966. Ganpati
Kundlik Kurule died on 08.02.1993 leaving behind him two sons namely
Laxman Ganpati Kurule and Devidas Ganpati Kurule and vide mutation
entry no.187 the names of legal heris of Ganpati Kundlik Kurule came to
be recorded on 04.12.1995. It is submitted that Abaji Ramji Jadhav died
leaving behind him two sons namely Uttamrao Jadhav and Mohan
Jadhav. One of the legal heir of Abaji Ramji Jadhav namely Uttamrao
died on 20.10.2005 and vide mutation no.1669 dated 27.02.2006 the
legal heirs of Uttamrao Jadhav namely Padminibai Uttamrao Jadhav,
Bhaskar Uttamrao Jadhav, Madhukar Uttamrao Jadhav, Sadashiv
Uttamrao Jadhav, Mahadev Uttamrao Jadhav, Shahadeo Uttamrao
Jadhav, Suresh Uttamrao Jadhav and Gawlanbai Sheshrao Baglane came
to be recorded as legal heirs of deceased Uttamrao Jadhav. As per
mutation entries the names in 7/12 extract of the petitioners were
recorded in the above gut numbers.
4. It is submitted that the petitioners received notice from the
Tahsildar, Beed. From the notice the petitioners came to know that Pooja
Shashikant Deshbhratar, R/o. Sarda nagri, Beed has filed an application
before the Tahsildar, Beed with the prayer to convert the land survey
no.19 and 20 from class 1 to class 2 and the petitioners received notice in
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respect of proceeding filed by Pooja in the capacity of General Power of
Attorney holder of Shaikh Sabiya Anjum Shakil, Respondent No.2.
5. The Respondent no.2 in the application has contended that
the certificate issued under Section 38(E) of the 1950 Act granted on
01.09.1960 in favour of the Petitioners be declared as fraudulently
obtained and cancelled. The petitioners objected to the proceeding as
without jurisdiction. Reply was filed by the petitioners on 19.08.2025
along with an application questioning the maintainability of the
application filed by the Respondent No.2. The Tahsildar notwithstanding
the objection of jurisdiction raised decided the matter on merits and the
certificate issued under Section 38(E) of the 1950 Act was quashed and
the Tahsildar directed all concerned to enter the name of the owners
namely Gulabbi Kishan Prasad by deleting all the entries of the
petitioners.
6. The petitioners challenge the impugned order in the present
writ petition as being passed without jurisdiction and that the deemed
ownership certificate issued 65 years back has been quashed by the
Tahsildar.
7. It is submitted that the petitioners also filed an appeal under
erroneous advice. But, before me, statement is made that they are
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withdrawing the appeal as the writ petition is the remedy and,
accordingly, they have filed the purshis to withdraw the appeal before the
appellate authority and are pursuing the present writ petition.
8. The learned counsel for the petitioners has placed reliance
on the following citations:
"1. 2025 SCC Online Bom 2833
2. 1999 SCC Online Bom 745
3. (2021) 16 SCC 1
4. (2013) 4 SCC 465
5. 2011 (4) Mah L R 314 (SC)"
9. Per contra, the learned Senior Advocate Mr. R.N. Dhorde i/b.
Mr. S.E. Shekade appearing for respondent no.2 submits that statutory
appeal is available to challenge the impugned order and on merits of the
matter he submits that certificate under Section 38E was fraudulently
obtained. The Tahsildar has the jurisdiction to entertain the proceeding
when fraud is pointed out to him and that he has rendered a finding on
fraud. It is for to the writ petitioners to challenge the same in the
appellate proceedings. But, it cannot be said that the Tahsildar has no
jurisdiction to entertain the application for recalling or setting aside the
certificate issued under Section 38(E) of the 1950 Act on the ground of
fraud when the same is noticed and pleaded. As such, he submits that
this court should not entertain writ petition and the petition may be
dismissed.
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10. With respect to the question raised, whether the Tahsildar
can recall / revoke certificate issued under Section 38E of the 1950 Act
after lapse of 65 years, the learned Senior Advocate has submitted that
writ petition is not maintainable as the order passed by the Tahsildar is
appealable under the Act. The learned Senior Advocate has relied upon
the Judgment of the Hon'ble Apex Court in the case of United India
Insurance Co. Ltd. Vs. Rajendra Singh and others, (2000) 3 SCC 581 and
the Judgment of A. V. Papayya Sastry and others Vs. Government of
Andhra Pradesh and others, (2007) 4 SCC 221 to contend that the order
obtained by fraud can be set aside and that fraud avoids all judicial acts.
It is submitted that, it is the settled proposition that the Judgment,
Decree or Order obtained by playing fraud on the court, tribunal or
authority is an nullity and non-est in the eye of law and such a Judgment,
Decree or Order by the first court or by the final court, has to be treated
as nullity by every court, superior or inferior.
Reference is also made to the case of Lazarus Estates Ltd. Vs.
Beasley Lord Denning, All ER p. 345 C), stating that no Judgment of a
court, no Order of the Minister, can be allowed to stand if it has been
obtained by fraud.
Reference is also made to the Judgment of S. P.
Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1.
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11. The learned Senior Advocate submits that when the matter
came before the Tahsildar as it was pleaded before him that certificate is
itself bogus and without any base, the certificate issued by the Tahsildar
under Section 38(E) of the 1950 Act is not in existenc.e. Therefore, by
giving various reasons Tahsildar has passed the detailed order. It is
submitted that Section 90 and 91 of the 1950 Act there are specific
provisions of appeal and revision.
Reliance is also placed on the Judgments of Vaijnath
Kharpure and others Vs. Mahadev M. Mote, 2010 (5) BCR 860, so also,
Hanmanta Daulaappa Nimbal, since deceased by his heirs and L.R.S. Vs.
Babasaheb Dajisaheb Londhe, 1996 (2) BCR 162.
12. On the factual aspect, the learned Senior Advocate for
respondent no.2 has submitted that the original owner of the properties
is Gulabbi Kishan Prasad. The said land was madatmash and situated in
survey nos.19 and 20. The said land is Inam land and through document
named Muntakhab it was transferred to the Gulabbi, who happens to be
the grandmother of Anjum, who is respondent no.2 in the present writ
petition. Muntakhab is a document that shows the Nizam, the king of
Hyderabad region, in post independent period has transferred certain
portion of land through the registered document. These documents are
considered as proof of ownership. The disputed land was shown by the
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petitioners to be in possession of the government since 20.07.1955 to
01.07.1960. The petitioners tried to show that there is a document
namely हक्काचा प्रकार due to which the forefathers of the petitioners namely
Ganpati Kundlik Kurule and Abaji Ramji Jadhav's names came in हक्काचा
प्रकार. The said entry was taken by the Talathi who did not have
authorization to insert said entry. In fact these powers completely belong
to Higher Revenue Authority. Therefore the basic document over which
the petitioners are relying is prima facie bogus.
There is a document in गावाचा नमुना नं. ९ (इनाम जमिनीचे
लावणीपत्रक ) where till 1961 to 1963 in ownership column name of
Gulabbi is mentioned. Even the concern Talathi has taken one incomplete
remark entry of "Khalsa" on 01.02.1962. The learned Tahsildar of that
time has granted stay to the Khalsa entry by the concerned Talathi. Even
the petitioners have submitted said document at page no.39 in present
writ petition and it also shows that, Tahasildar has granted stay.
The respondent no.2 submits that the forefathers of
petitioners namely Ganpati KundlikAbaji Ramji. By joining hands with the
concerned Talathi, bogus and fraudulent certificate is prepared merely on
papers and in 1993 the bogus mutation entry no.770 was inserted.
The respondent no.2 submits that the said land is Inam land
and the provisions of the 1950 Act were not been applicable. Prima facie,
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it appears that, by preparing bogus documents petitioners want to
continue the bogus ownership.
It ought to be considered that, said Inam land belongs to the
grandmother of present respondent no.2. Her name was in ownership
column. Therefore, she did not have any necessity to file application for
Khalsa. It appears that, with her name certain applications are filed for
Khalsa of which she does not have any concern.
It is submitted that, prima facie, it appears that, the
petitioners does not have any concern with the alleged property.
Basically, Gulabbi was the original owner since pre-independence period
and her name was present in revenue record till 1992. Without any
reason, her name was deleted from the revenue record. There are no
justification to delete her name. As soon as the respondent no.2 received
knowledge regarding the fraud committed at the instance of petitioners,
the respondent no.2 approached the competent authority and the
authority has exercised the judicial powers and passed an reasoned order
which does not need any interference in exercise of writ jurisdiction. The
learned Tahsildar has made observation regarding the merits of the
matter as under:-
"वास्तविक, अशा प्रकारची नोंद घेण्याचे अधिकार हे तलाठी यांना नाहीत. त्या
बाबतचे अधिकार सक्षम अधिकारी यांना प्रदान केलेले आहेत. त्यावरून
मुळातच कलम 38 (ई) प्रमाणे गैरअर्जदारांची घेण्यात आलेली मालकी हक्काची
नोंद किंवा उपकलम (4) चे शर्तीनुसार प्रतिबंधित मालकी कब्जा प्राप्त झाला
आहे, ही नोंद कायदेशीर असल्याचे दिसून येत नाही. गैर अर्जदार यांनी त्या
बाबत योग्य ते कायदेशीर पुरावे प्रकरणात दाखल केलेले नाहीत. मुळातच,
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गैरअर्जदाराचे कथन व पुराव्यावरून त्यांनी गैरअर्जदार हे सदर जमिनीवर
कब्जेदार असल्याचे कथन केलेले आहे. मात्र, हैदराबाद इनाम निर्मूलन व रोख
अनुदानात कायदा 1954 चे कलम 6(1) अ प्रमाणे जमिनी बाबत फेर मंजूर
झाल्याचे नमूद केलेले आहे. त्यामुळे सन 1955 ते 1960 या काळात सदर
जमिनीचे कब्जे हे शासनाकडे वर्ग करण्यात आलेले होते . त्यामुळे गैरअर्जदारांचे
कथन हे कायदेशीर असल्याचे दिसून येत नाही व नमूद कागदपत्रे व
पुराव्यावरून गैरअर्जदारांचे वादग्रस्त जमिनीवरील हक्क व अधिकार एकाच वेळी
हैदराबाद कुळ कायदा 1950 व हैदराबाद इनाम निर्मूलन कायदा 1954
कागदपत्रे व पुराव्या शिवाय मान्य करता येणार नाहीत. प्रकरणात दाखल
असलेली कागदपत्रांचे अवलोकननावरून असे दिसून येते की, गैरअर्जदारांच्या
हैदराबाद कुळ कायदे 1950 चे कलम 38 (ई) अन्वये घेण्यात आलेली नोंदी
या बेकायदेशीर व तत्कालीन तलाठी व महसूल अधिकारी यांचेशी संगनमत
करून अभिलेखांमध्ये नोंदविल्या असलेल्या स्पष्ट होत आहे. म्हणून माझे मत
असे आहे की, वादग्रस्त जमिनी ह्या इनामी जमिनी आहेत व त्यामुळे सदर
जमिनीस हैदराबाद कुळ वहिवाट व शेतजमीन अधिनियम 1950 मधील कलम
38 (ई) हे लागू होत नाही. तसेच, गैरअर्जदार यांचे रेस-ज्युडिकेटा व मुदतीच्या
कायद् या बाबतचे कथन अर्जदारांचे प्रकरणास लागू होत नाही. त्यामुळे
गैरअर्जदार यांनी रेस-ज्युडिकेटा बार येत असल्याचे दिनांक 2-9-2025 चा
अर्ज नामंजूर करणे योग्य आहे. त्यामुळे गैरहर्जादार यांना इनाम मदत - माश
जमीन सर्वे नंबर 19 व 20 बाबत कायदेशीर नाही."
It ought to be considered that, if the petitioners wants to
challenge the said order there are specific provisions as contemplated in
section 90 & 91 of the Hyderabad Tenancy and Agricultural Land, 1950.
Instead of approaching the Deputy Collector (Land Reform) the
petitioners directly approached before this Hon'ble Court without availing
the appropriate efficacious alternate remedy. Hence, the present petition
is devoid of merits and liable to be dismissed by applying exemplary
costs.
13. Having considered the rival submissions the first question
that arises for consideration is, whether this court in exercise of writ
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jurisdiction can entertain the present writ petition when there is alternate
provision of appeal (if any) ?
14. The Hon'ble Apex Court in the case of Radha Krishan
Industries Vs. State of Himachal Pradesh and others, (2021) 6 SCC 771
has summarized the law applicable on entertaining the writ petition by
High Court as under:
"27. The principles of law which emerge are that:
27.1 The power Under Article 226 of the Constitution to issue writs
can be exercised not only for the enforcement of fundamental rights,
but for any other purpose as well;
27.2 The High Court has the discretion not to entertain a writ petition.
One of the restrictions placed on the power of the High Court is where
an effective alternate remedy is available to the aggrieved person;
27.3 Exceptions to the Rule of alternate remedy arise where (a) the
writ petition has been filed for the enforcement of a fundamental right
protected by Part III of the Constitution; (b) there has been a violation
of the principles of natural justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a legislation is
challenged;
27.4 An alternate remedy by itself does not divest the High Court of
its powers Under Article 226 of the Constitution in an appropriate case
though ordinarily, a writ petition should not be entertained when an
efficacious alternate remedy is provided by law;
27.5 When a right is created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy before invoking the
discretionary remedy Under Article 226 of the Constitution. This Rule
of exhaustion of statutory remedies is a Rule of policy, convenience
and discretion; and
27.6 In cases where there are disputed questions of fact, the High
Court may decide to decline jurisdiction in a writ petition. However, if
the High Court is objectively of the view that the nature of the
controversy requires the exercise of its writ jurisdiction, such a view
would not readily be interfered with."
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15. Thus, from the above Judgment of Radha Krishan Industries
Vs. State of Himachal Pradesh and others (supra), if the petitioners
demonstrates that the order or proceedings of the Tahsildar are fully
without jurisdiction, this court can entertain the writ petition, even if
there is alternate remedy of appeal.
16. The undisputed fact of the matter is that the certificate is
issued to the forefathers of the petitioners under Section 38(E) of the
1950 Act in the year 1960 declaring them to be the protected tenants of
their land and the purchase price has been paid in 1966.
17. The issue arising for consideration is the nature of certificate
issued under Section 38E of the Hyderabad Tenancy and Agricultural
Lands Act, 1950 and the jurisdiction of the Tahsildar to revoke it after
long lapse of time on the allegations of fraud. This Court in the case of
Kausalyabai w/o Ramanlal Ladda & Anr. V/s. Shankar s/o Khanuji
Kothimbre & Ors.; 2021 (5) Mh.L.J. 546 has held that the ownership is
conferred by statutory provisions after inquiry and the certificate granted
under Section38-E is a formal declaration that the protected tenant by
virtue of the provisions of the Act has become owner of the land he
cultivates. Order of grant of certificate does not partake the character of
an order in the strict sense. As such no appeal or revision would be
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maintainable against the order granting Section 38-E certificate. In this
regard paragraph nos.12 to 15 of the judgment of Kausalyabai w/o
Ramanlal Ladda & Anr. (supra) are quoted below:
"12. From a conjoint reading of aforesaid provisions, it
becomes evident that the Hyderabad Tenancy Act, 1950 vests
ownership of the land in a protected tenant by engrafting a legal
fiction. The ownership is conferred by the statutory provisions. It
emanates from the status of being a protected tenant. In a sense,
the grant of certificate, under section 38-E, is a formal declaration
that the protected tenant by virtue of the provisions of the Act has
become owner of the land he cultivates. It does not partake the
character of an order in the strict sense.
13. In this context, reliance placed by Mr. Patki on a judgment
of this Court in the case of Bharatlal Hemraj vs. Kondiba Govinda
Jadhav and others, 2001(3) Mh.L.J. 380 = 2002 (Supp.1)
Bom.C.R. 216, wherein the very question of tenability of an
appeal against grant of certificate under section 38-E of the Act,
1950, fell for consideration, appears to be well founded. After an
elaborate analysis of the provisions of the Act, 1950, this Court
held that a certificate is merely affirmative expression of
conferment of ownership upon the person holding a land and
already declared or confirmed as the protected tenant under the
provisions of said law. Such a declaration is not a decision or
order within the meaning of said expression under section 90 of
the Act, 1950. Thus, no appeal is maintainable against an order
granting such certificate.
14. The observations of this Court in para 16 are material and thus
extracted below:-
"16. Yet another point to be considered in relation to section 38E
is that such declaration is not a decision or order within the
meaning of the said expression under section 90 of the said Act.
Section 90 of the said Act, as already stated above, clearly speaks
of "order" and not merely a declaration in the form of certificate
to be issued in favour of the protected tenant. As already seen
above, the ownership certificate under section 38E is to be issued
in the Form XVI which is a certificate conferring ownership of
the land in favour of a protected tenant. It is a formal certificate
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issued declaring a protected tenant in relation to the property held
by him to be the owner thereof. There is no decision or
adjudication of rival contentions of the parties at the time of
issuance of such certificate. In that regard it cannot be said to be a
decision as such nor it can be termed as "order" within the
meaning of said expression under section 90. A decision does not
mean mere conclusion but it embraces within its fold the reasons
forming basis for arriving at "conclusion" as has been held by the
Apex Court in Mukhtiar Singh and another vs. State of Punjab,
reported in (1995) 5 SCC 760 AIR 1995 SC 686. The authority
issuing certificate under section 38E does not pass any order as
such, and therefore, there is no question challenging the said
certificate by way of appeal under section 90. A certificate is
merely affirmative expression of confirmation of ownership upon
the person holding a land and already declared or confirmed as
the protected tenant under the provisions of the said law. Once it
is clear that the appeal itself was not maintainable under section
90 against the certificate issued under section 38-E, the point as to
whether the petitioner acquired knowledge about the declaration
under section 38-E in 1979 for the first time became redundant for
the decision in appeal preferred by the petitioner. The challenge
on the first two grounds therefore is totally devoid of substance.
Neither declaration made under section 38-E is bad for want of
individual notice either to the petitioner or to his father or mother,
nor the appeal filed by the petitioner was maintainable under
section 90 of the said Act."
15. In view of aforesaid enunciation of the legal position, the
submission sought to be canvassed by Mr. Gangakhedkar that, if
not an appeal, a revision under section 90-B would definitely lie,
deserves to be repelled for the same reasons. Section 90-B
provides for exercise of revisional jurisdiction, by the specified
authorities, where no appeal has been filed within the period
stipulated for appeal. The test of appealability of the order or
decision thus applies with equal force to the revisability thereof. I
am, therefore, not persuaded to agree with the submission on
behalf of the respondents that the petitioners have an equally
efficacious statutory remedy."
18. In the case of Bharatlal s/o Hemraj V/s. Kondiba Govinda
Jadhav & Ors; 2001 (3) Mh.L.J. 380, this Court has observed the
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ownership of land in protected tenant is created by virtue of provisions
Section 38E and that there is no provision for individual notice before
issuing declaration of ownership of land in favour of the protected
tenant. Status of tenancy is subject to the right of challenge by the law in
terms of Section 35 and 37-A and a person interested in disputing the
right of other person as a tenant is required to file necessary application
in that regard to the authority specified under the law and upon holding
necessary inquires in the matter has to decide the controversy and
thereupon prepare a list of persons who can be considered as protected
tenants or deemed to be protected as the case may be. Before proceeding
to make a declaration under Section 38A there is yet another inquiry
under Section 38A (1) regarding subsisting encumbrances over the lands
which are to be subject to declaration under Section 38E. A public notice
of such notification is required to be issued as per rule 17. In other
words, the land owners are given ample opportunities to dispute the right
of a person claiming to be a protected tenant or deemed protected tenant
and only after detailed enquiry, the landholder i.e. the protected tenant
or a deemed protected tenant becomes the deemed owner. That being so,
there is no need for any individual notice to be issued at the time of
issuance of declaration of ownership in favour of the protected tenant of
the land held by him. Before finalising the list of deemed owners under
Section 38E, there is inquiry held in terms of Rule 23. It is further held
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that Section 38E is not a decision or an order within the meaning of the
said expression under Section 90 of the Act. The ownership certificate
under Section 38E is to be issued in Form XVI which is a certificate
conferring ownership of a land in favour of a protected tenant. It is a
formal certificate issued declaring a protected tenant in relation to the
property held by him to be the owner thereof. There is no decision or
adjudication of rival contentions of the parties at the time of issuance of
such certificate. In that regard, it cannot be said to be a decision as such
nor to be termed as order within the meaning of said expression under
Section 90. The authority issuing certificate under Section 38E does not
pass any order as such and therefore there is no question of challenging
the said certificate by an appeal under Section 90. In this regard,
paragraph nos.15 and 16 of the judgment of Bharatlal s/o Hemraj
(supra) and are quoted below:
"15. The ownership of land in a protected tenant is created by virtue
of provisions of section 38E. The well established principle of law
is that when a statute creates a legal fiction saying that something
shall be deemed to have resulted from the facts established in a
particular circumstance, then full effect has to be given to the legal
fiction created by the statute. In this regard one can certainly refer
to the decisions of the Apex Court in the matter of Harish Tandon
vs. Additional District Magistrate Allahabad, U. P. and others
reported in 1995(1) SCC 537 = AIR 1995 SC 676 and in the matter
of Orient Paper and Industries Limited and another vs. State of
Orissa and others reported in 1991 Suppl. 1 SCC 81 = AIR 1991 SC
672. In section of the Act there is no provision for individual notice
before issuing declaration of ownership of land in favour of the
protected tenant. So also is the case of Rule 23. But the fact remains
that such declaration is a protection given to certain persons called
as the protected tenants under section 38E of challenge by the
17 wp11222.2025
landowner in terms of sections 35 and 37A. As already the said Act.
Certainly the said status of tenancy is subject to right to stated
above, any person interested in disputing the right of another person
as that of a tenant, is required to file a necessary application in that
regard to the authority specified under the law, who upon holding
necessary enquiries in the matter, has to decide the controversy and
thereupon prepare a list of persons who can be considered as the
protected tenants or the tenants deemed to be protected as the case
may be. The matter does not end with such enquiries. Before
proceeding to make declaration under section 38E, there is yet
another enquiry under section 38A-1 regarding subsisting
encumbrances over the lands which are to be subject to declaration
under section 38E. A public notice of such notification is required
to be issued as per rule 17. In other words, the landowners are given
ample opportunities to dispute the right a person claiming to be the
protected tenant or deemed protected tenant and only after detailed
enquiry, the landholder i.e. the protected tenant or deemed protected
tenant becomes the deemed owner. That being so, there is no need
of any individual notice to be issued at the time of issuance of
declaration of ownership in favour of the protected tenant of the
land held by him. In fact, reading down the need for any other
procedure for issuance of the declaration under section 38E would
be absurd and would nullify and defeat the very object of the said
Act. The said Act and more particularly the relevant provision is a
beneficial legislation in favour of the protected tenant and has to be
construed accordingly, bearing in mind the intention of the
legislature. Besides, before finalising the list of deemed owners
under section 38E, there is inquiry held in terms of Rule 23 of the
said Rules, but there is no scope for individual notices.
16. Yet another point to be considered in relation to section 38E is
that such declaration is not a decision or order within the meaning
of the said expression under section 90 of the said Act. Section 90
of the said Act, as already stated above, clearly speaks of "order"
and not merely a declaration in the form of certificate to be issued
in favour of the protected tenant. As already seen above, the
ownership certificate under section 38E is to be issued in the Form
XVI which is a certificate conferring ownership of the land in
favour of a protected tenant. It is a formal certificate issued
declaring a protected tenant in relation to the property held by him
to be the owner thereof. There is no decision or adjudication of rival
contentions of the parties at the time of issuance of such certificate.
In that regard it cannot be said to be a decision as such nor it can be
18 wp11222.2025
termed as 'order' within the meaning of said expression under
section 90. A decision does not mean mere conclusion but it
embraces within its fold the reasons forming basis for arriving at
'conclusion' has been held by the Apex Court in Mukhtiar Singh and
another vs. State issuing certificate under section 38E does not pass
any order as such, and of Punjab reported in 1995(5) SCC 760-AIR
1995 SC 686. The authority the said certificate by appeal under
section 90. A certificate is merely a formative expression of
confirmation of ownership upon the person holding a land and
already declared or confirmed as the protected tenant under the
provisions of the said law. Once it is clear that the appeal itself was
not maintainable under section 90 against the certificate issued
under section 38E, the point as to whether the petitioner acquired
knowledge about the declaration under section 38E in 1979 for the
first time became redundant for the decision in appeal preferred by
the petitioner. The challenge on the first two grounds therefore is
totally devoid of substance. Neither declaration made under section
38E is bad for want of individual notice either to the petitioner or to
his father or mother, nor the appeal filed by the petitioner was
maintainable under section 90 of the said Act."
19. The long standing legal position as regards the nature of
certificate issued under Section 38E of the Hyderabad Tenancy and
Agricultural Lands Act, 1950 is that it is only a formal declaration which
is granted after inquiry under other provisions of the Act and not
amenable to appellate or revisional jurisdiction. Now coming to the facts
of the present case. The application filed by the Respondent indicate that
it is under filed under Section 70B of he Maharashtra Tenancy and
Agricultural Lands Act, 1948. However, in the course of argument the
learned senior counsel appearing for the Respondent/Original Applicant
has made an attempt to explain the same i.e. the application as being
under Section 8 of the Hyderabad Tenancy and Agricultural Lands Act,
19 wp11222.2025
1950 and further that an Authority which issues a certificate has
jurisdiction to cancel the same, if it is demonstrated before the authority
that the certificate is fraudulently obtained.
20. In the application it is mentioned that the same is filed under
Section 70B of the Maharashtra Tenancy and Agricultural Lands Act,
1948 and it is stated that the applicant is one Ms. Puja Shashikant
Deshbratar and is stated to be holding power of attorney on behalf of
Shaikh Sabiha Anjum Shakil Ahmed who is the legal heir of the original
land owner Gulab bi Avje Kisan Prasad. It is stated in the application that
the Original Owner Gulabi bi has received a Muntakhab from the Nizam
of Hyderabad as Madatmash land. It is further stated that the Petitioners
herein have received the certificate under Section 38E of the Hyderabad
Tenancy and Agricultural Lands Act, 1950 and the same was illegally
granted on 14.09.1961. It is stated that there were some interim orders
passed by the Tahsildar and notwithstanding the interim orders the
authority i.e. the Circle Officer has proceeded to pass final order granting
38E certificate. It is stated that the land was given under the Inam and
there could have been no application of the protected tenancy under
Hyderabad Tenancy and Agricultural Lands Act, 1950 on the said land
and as such the 38E certificate issued is illegal. The application filed by
the Respondent at Para 7 read as under:
20 wp11222.2025
७. हेकी, वादग्रस्त जमीन ही ईनामी जमीन असल्यामुळे सदर जमिनीवर
कायद्याने कुळ लागत नाही तरीसुद्धा गैरअर्जदार व त्यांचे पूर्व ज गणपत
कंु डलिक व आबाजी रामजी यांनी ईनाम जमिनीवर कुळ असल्याचे
बनावट कुळ कायद्या अंतर्गत कलम ३८ ई चे प्रमाणपत्र तयार करून
महसूल अभिलेखात गैरअर्जदार यांनी चुकीची, बोगस व बनावट नोंद
करून घेतलेली आहे जी रद्द होणे न्यायाचे दृष्टीने योग्य व आवश्यक
आहे.
21. It is stated that without taking permission, the Circle Officer
at the relevant time has recorded the bogus entry. It is stated that the
certificate is issued on 01.09.1960 under Section 38E, however, in 1963
the Tahsildar had given stay to it. As such the certificate is wrongly
issued and the same is bogus. It is stated that the land comes within
Inam properties and on the said land such certificate ought not to have
been issued.
22. In the application filed by Respondent No.2, it is not stated
when the alleged fraud came to the knowledge of the original applicant
i.e. the owner. The application is also filed in the name of Power of
Attorney name and not in the name of the legal heirs of the original
owner. How this particular property came to be allotted to one particular
legal heir by the original family of the landlord is not known. On the
date of deemed ownership the landlord looses all the rights over the
agricultural property except to the extent of receiving the purchase price
determined under the Act. In the instant case, such price is also paid by
21 wp11222.2025
the petitioners forefathers. The occupancy price came to be deposited by
the tenant on 03.05.1966. The petitioners are in long standing
possession of the property since February 1957 and that no objection was
raised by the owners at any point of time. The statutory appellate
provisions relating to the inquiry of protected tenancy stood exhausted
long back.The case is being put up before me by the learned counsel that
a fraud is noticed, however, there are no details of fraud. A fraud is a
deliberate act of deception with the design of securing something by
taking unfair advantage of another. It is also a deception in order to gain
by another's loss. It is a cheating intended to get an advantage. Fraud as
is well known vitiates every solemn act. Fraud and justice never dwell
together. The Hon'ble Supreme Court in the case of State of Andhra
Pradesh & Anr. V/s. T. Suryachandra Rao; 2005 (6) SCC 149 held as
under:
"8. By "fraud" is meant an intention to deceive; whether it is
from any expectation of advantage to the party himself or from the
ill will towards the other is immaterial. The expression "fraud"
involves two elements, deceit and injury to the person deceived.
Injury is something other than economic loss, that is, deprivation
of property, whether movable or immovable or of money and it
will include any harm whatever caused to any person in body,
mind, reputation or such others. In short, it is a non-economic or
non-pecuniary loss. A benefit or advantage to the deceiver, will
almost always cause loss or detriment to the deceived. Even in
those rare cases where there is a benefit or advantage to the
deceiver, but no corresponding loss to the deceived, the second
condition is satisfied.
9. A "fraud" is an act of deliberate deception with the design of
securing something by taking unfair advantage of another. It is a
deception in order to gain by another's loss. It is a cheating
intended to get an advantage."
22 wp11222.2025
23. Recently, the Hon'ble Supreme Court of India in the case of
Vishnu Vardhan alias Vishnu Pradhan V/s. State of Uttar Pradesh & Ors.;
2025 SCC OnLine SC 1501 has dealt with this aspect in detail where the
Court has noted the judgment in A.V. Papayya Sastry V/s. Govt. A.P.; 2007
(4) SCC 221 as under:
"21. Now, it is well-settled principle of law that if any judgment
or order is obtained by fraud, it cannot be said to be a judgment or
order in law. Before three centuries, Chief
It has also noted the judgment given by Denning,
L.J. in Lazarus Estates Ltd. (supra). ustice Edward Coke
proclaimed:
"Fraud avoids all judicial acts, ecclesiastical or temporal."
22. It is thus settled proposition of law that a judgment, decree or
order obtained by playing fraud on the court, tribunal or authority
is a nullity and non est in the eye of the law. Such a judgment,
decree or order-by the first court or by the final court-has to be
treated as nullity by every court, superior or inferior. It can be
challenged in any court, at any time, in appeal, revision, writ or
even in collateral proceedings.
23. **
24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn.,
p. 644, explaining the nature of fraud, de Grey, C.J. stated that
though a judgment would be res judicata and not impeachable
from within, it might be impeachable from without. In other
words, though it is not permissible to show that the court was
"mistaken", it might be shown that it was "misled". There is an
essential distinction between mistake and trickery. The clear
implication of the distinction is that an action to set aside a
judgment cannot be brought on the ground that it has been
decided wrongly, namely, that on the merits, the decision was one
which should not have been rendered, but it can be set aside, if the
court was imposed upon or tricked into giving the judgment.
23 wp11222.2025
25. It has been said: fraud and Justice never dwell together (fraus
et jus nunquam cohabitant); or fraud and deceit ought to benefit
none (fraus et dolus nemini patrocinari debent).
d. The judgment by Denning, L.J. in Lazarus Estates Ltd. (supra),
which has since been quoted with approval by this Court in a
catena of decisions including Nidhi Kaim (supra), asserted
intolerance for fraud in legal proceedings in the following words:
No court... will allow a person to keep an advantage which he has
obtained by fraud. [...] Fraud unravels everything. The court is
careful not to find fraud unless it is distinctly pleaded and proved;
but once it is proved, it vitiates judgments, contracts and all
transactions whatsoever....
62. We are also mindful of the legal principle that if a fact could
have been discovered through the exercise of due diligence, its
non-disclosure does not constitute suppressio veri or suggestio
falsi. Profitable reference may be made to the decision in Shri
Krishnan v Kurukshetra University.
24. In the instant case, it is to be seen that certificate is granted
under Section 38E after inquiry under the other provisions of the Act. As
already noticed above grant of certificate under Section 38E is only a
formal declaration and there is prior inquiry contemplated under the Act
by the State which can be challenged by the land owner. It is only on
completion of inquiry under the Act that a formal declaration is given
under Section 38E. The owners have the right to challenge the findings of
inquiry before the Appellate Authority. The period for such challenge is
long over. It is not known how fraud is noticed by the applicant and at
what stage. The Petitioners are in settled possession from 1957 and
24 wp11222.2025
declaration being made in the year 1960. It is too late today to allege
fraud without setting out the particulars of knowledge of fraud and how
fraud was played upon the applicants or the authorities and how and
when the applicants became aware of the same. The petitioners have also
paid the occupancy price of the land in 1966. The owners have lost all
right, title and interest over the property and the applicant has no cause
to re-open the certificate granted. The allegations made by the applicant
are also that the land being a Madatmash land no such declaration under
Section 38E ought to have been granted. These arguments do not relate
to fraud and are not available to the applicant, as they would entail a
different nature of inquiry, assuming that the applicant has any authority
to file an application. The Hon'ble Supreme Court in the case of
Electrosteel Castings Limited V/s. UV Asset Reconstruction Company
Limited and Others; (2022) 2 SCC 573 has held that where the parties
put up a case of fraud, the parties pleading must set forth full particulars
and the case can be decided on the particulars as laid. There can be no
departure from them in evidence. Para 8 and 8.1 of the judgment of
Electrosteel Castings Limited (supra) are quoted below:
"8. In Bishnudeo Narain V/s. Seogeni Rai; 1951 SCC 447 in
para 22, it is observed and held as under:
"22. ....Now if there is one rule which is better
established than any other, it is that in cases of fraud,
undue influence and coercion, the parties pleading it
must set forth full particulars and the case can only be
decided on the particulars as laid. There can be no
25 wp11222.2025
departure from them in evidence. General allegations
are insufficient even to amount to an averment of fraud
of which any court ought to take notice however
strong the language in which they are couched may be,
and the same applies to undue influence and coercion.
See Order 6 Rule 4, Civil Procedure Code."
8.1. Similar view has been expressed in Ladli Parshad Jaiswal
and after considering the decision of the Privy Council in Bharat
Dharma Syndicate Ltd. v. Harish Chandra10, it is held that a litigant
who prefers allegation of fraud or other improper conduct must
place on record precise and specific details of these charges. Even
as per Order VI Rule 4 in all cases in which the party pleading
relies on any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, particulars shall be stated in the
pleading. Similarly in K.C. Sharma & Co. it is held that "fraud" has
to be pleaded with necessary particulars. In Ram Singh, it is
observed and held by this Court that when the suit is barred by any
law, the plaintiff cannot be allowed to circumvent that provision by
means of clever drafting so as to avoid mention of those
circumstances by which the suit is barred by law of limitation."
25. It is also interesting to note the exercise of jurisdiction by the
Tahsildar. The application filed by Respondent No.2 indicates that the
same is filed under the Maharashtra Tenancy and Agricultural Lands Act,
1948 which is not applicable to the region and the Act applicable would
be the Hyderabad Tenancy and Agricultural Lands Act, 1950. The
certificate is issued under the Hyderabad Tenancy and Agricultural Lands
Act, 1950 and there is no provision under the 1950 Act by which the
Tahsildar could have revoked the certificate. After grant of certificate,
further processes as contemplated under the Hyderabad Tenancy and
Agricultural Lands Act, 1950 of payment of occupancy price is complete
26 wp11222.2025
in 1966 and the remedies available are also to be exhausted within the
time frame. The alleged fraud has to be pleaded with particular details
as to how the deception is played by the Petitioners on the authority
constituted. The case pleaded is that the revenue authorities i.e. the
Circle Officer has granted certificate under Section 38E although there
was a pending stay order by the Tahsidlar and that the land for which
certificate is granted is Inam land on which no protected tenancy can be
declared. The Revenue authority which issued a certificate under 38E
gives only a formal declaration of protected tenancy and the same is after
the inquiry as conducted under the preceding sections of the Act as
noticed in the judgment of Bharatlal s/o Hemraj (supra). The contention
of the Petitioners that the land of the applicant being an Inam land on
which there can be no declaration of protected tenancy, would entail a
different inquiry as regards the nature of land being Inam (assuming that
the legal contention is correct). Error in grant of certificate by the
authorities is different from fraud. Erroneous orders have to be
challenged within time frame before the appropriate authority.
26. In the instant case, the Tahsildar in entertaining the
application has acted beyond the authority of law and without
jurisdiction. The application was submitted on 12.08.2025 and the
impugned order is dated 04.09.2025. The Tahsildar has acted in extreme
haste and has exercised jurisdiction which is not conferred upon him. He
27 wp11222.2025
has acted on assumed jurisdiction on spacious plea of 'Fraud' being
committed in obtaining the ownership certificate under Section 38E in
the year 1960 of which occupancy price was paid in 1966. The action of
the Tahsildar in entertaining the application and adjudicating the same is
without jurisdiction.
27. For the reasons noted above, the Writ Petition is allowed and
the impugned order dated 04.09.2025 passed by the Tahsildar, Beed is set
aside.
[ARUN R. PEDNEKER, J.]
mubashir
