Bombay High Court
Eknath S/O Raghoba And Ors. vs Somla S/O Lalu Lamani Through His Legal ... on 27 June, 1991
Equivalent citations: 1991(3)BOMCR519
JUDGMENT N.P. Chapalgaonker, J.
1. This is a petition by purchaser - landlords challenging an order of the Deputy Collector (Land Reforms), Beed, passed under section 98-A of the Hyderabad Tenancy & Agricultural Lands Act, 1950 directing restoration of possession to the tenants being purchasers. It appears that Devidas and Vaijnath and their brothers were the original owners of lands Survey Nos. 10-A, 10-E, 14-A and 14-E situated at village Morambi in Ambajogai taluka of Beed District. These lands came to be purchased by present petitioners by a registered sale-deed which was executed by owners on 16th July, 1957. It is the case of petitioners that a proper permission as was required then under section 47 of the Hyderabad Tenancy and Agricultural Lands Act was obtained for the execution of the sale-deed and though the respondents had originally objected for the issue of such permission, had subsequently withdrawn that objection and consented to the grant of permission in favour of the purchasers.
2. Before the sale-deed in favour of the present petitioners was executed, section 38-A of the Hyderabad Tenancy & Agricultural Lands Act, 1950 (hereinafter called 'Hyderabad Tenancy Act' for the purpose of brevity) came into operation in the district of Beed by way of a Notification No. TNC-5756/169065-(b) which was published in the Government Gazette on 14th February, 1957 and the ownership of the disputed lands stood transferred in the name of respondent-tenant with effect from 1st day of February, 1957. Though predecessor-in-title of the present petitioners-original landlord and even the present petitioners did contest the question of the validity of this declaration, but the said declaration was confirmed and finally in Special Civil Application No. 1477/1978 decided by this Court on 10th of November, 1983, declaration in favour of the tenants was confirmed. Since it was found by the Tahsildar, Ambajogai, that though the petitioners were in possession on the appointed day, they have lost the possession subsequently and, therefore, he intimated to the declared owners that the declared owners should approach the Deputy Collector under section 98 of the Hyderabad Tenancy Act by a notice dated 24th of November, 1971. It appears that thereafter on 15th May, 1973 tenants filed an application under section 98 of the Hyderabad Tenancy Act for possession before the Deputy Collector, Ambajogai. Learned Deputy Collector, Ambajogai, was pleased to allow this application by his order dated 3rd July, 1974 against which an appeal was filed before the Maharashtra Revenue Tribunal at Aurangabad and on 10th October, 1974, learned Member of the Maharashtra Revenue Tribunal was pleased to remand this matter to the learned Deputy collector (Land Reforms), Beed, and on remand learned Deputy Collector (Land Reforms), Beed, was pleased to allow this application finally on 18th December, 1985 in Case No. 81/TNC/46 directing restoration of the possession to the declared tenants. An appeal bearing No. 9-A-86 Beed filed by the present petitioners came to be dismissed by learned Member of the Maharashtra Revenue Tribunal vide his order dated 31st July, 1986. Both these orders are subject matter of challenge in this writ petition.
3. Mrs. M.A. Kulkarni, learned Counsel appearing for petitioners, has raised following contentions objecting the above referred impugned orders:
(1) That the application under section 98 filed by the respondents was beyond the period of limitation and, therefore, it should have been dismissed.
(2) That the remedy under section 98 is not available to the present respondents-applicants since an alternate remedy in the form of an application under section 38-E(1) Explanation is available to them.
(3) Since in this matter complicated questions of law including those relating to the title are involved, Collector should not have exercised his jurisdiction under section 98.
Smt. Kulkarni contends firstly that an enquiry under section 98-B being an enquiry under the Hyderabad Tenancy Act, procedure prescribed by the Mamlatdars' Courts Act, 1906 will have to be followed since this has been made applicable by virtue of the provisions of section 89 of the Hyderabad Tenancy Act. She further contends that sub-section (3) of section 5 of the Mamlatdars' Courts Act, 1906 prescribes a limitation of six months which is applicable to the Hyderabad Tenancy Act also. In support off her contention, she relies on a judgment of Full Bench of this Court in the case of Panpoi Dharmal Sansthan Dhatar Kendra v. Bhagwant and others, 1990(1) Mah.L.R. 40. Interpreting the provisions of section 102 of the Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958 Full Bench of this Court has held that to the proceeding instituted under section 101 of the Tenancy Act for seeking a declaration under sub-section (2) of section 100 of the Tenancy Act, the period of limitation as prescribed by the Mamlatdar's Courts Act will apply.
4. Section 89 of the Hyderabad Tenancy Act is pari-materia with section 102 of the Vidarbha Act and the provision that the procedure prescribed under the Mamlatdars' Courts Act will have to be followed, is in respect of all enquiries and proceedings before the Tahsildar or the Tribunal. Section 89 of the Hyderabad Tenancy Act is quoted below :
"In all inquiries and proceedings commenced on the presentation of applications under section 88-A, the Tahsildar or the tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906, and shall save as provided in section 32 follow the provisions of the said Act, as if the Tahsildar or the tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under section 7 of the said Act. In regard to matters which are not provided for in the said Act the Tahsildar or the tribunal shall follow such procedure as may be prescribed by the State Government. Every decision of the Tahsildar or the tribunal shall be recorded in the form of an order which shall state the reasons for such decision.
For the application of section 89, a proceeding must have started before the Tahsildar or the tribunal and the Tahsildar or the tribunal shall follow the Mamlatdars 'Courts Act as if they were a Mamlatdar's Court. Collector has been left out of the purview of section 99 and the Collector exercising powers under the Hyderabad Tenancy Act cannot be said to have been covered by section 89 and the procedure prescribed by the Mamlatdars' Courts Act including the limitation prescribed therein, is not applicable so far as the enquiries before the Collector (which include Deputy or Assistant Collector) are concerned. Section 98 gives the power of summary eviction to the Collector which are now exercised by the Deputy collectors. Collector is not required to follow the procedure of the Mamlatdars' Courts Act and the limitation as prescribed in sub-section (3) of section 5 of the Mamlatdars' Courts Act, 1906 is, therefore, not applicable to applications under section 98 before the Collector. Full Bench case cited by Mrs. Kulkarni only interprets the cases which are covered by section 102 of the Vidarbha Act or section 89 of the Hyderabad Tenancy Act. Question whether there is any limitation for application under section 84 of the Bombay Tenancy & Agricultural Lands Act, was considered by Division Bench of this Court in the case of Ghanashyamprasad Natwarlal Bhatt v. Gendalsing Vakhatsing and others, in Special civil Application No. 764/1955. The Division Bench observed thus :
"You cannot apply limitation by analogy. Limitation either bars a remedy or extinguishes a right of a party and it is unthinkable that any Court would bar a remedy or extinguish a right when the Legislature has not done so by importing the principles of some other statute and drawing analogy from some other provision of law. If there is no limitation provided by the Legislature then the only thing that the Tribunal has to do is to permit the application to be made irrespective of passage of time."
Noticing that suo motu action also can be taken under section 84 of the Bombay Tenancy Act of 1948, the Division Bench had observed that the Tenancy Act does not provide for a period of limitation for an application under section 84.
5. Mrs. Kulkarni further relied on a judgment of the Supreme Court in the case of The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, , contending that Article 137 of the Limitation Act, 1963 would be applicable to every application including that of section 98 of the Hyderabad Tenancy Act. Even this contention will have to be rejected on the simple ground that what the Supreme Court has held is that, Article 137 will apply to any petition or application filed under any Act to a Civil Court. Needless to say that, the Deputy Collector holding an enquiry under section 98 of the Hyderabad Tenancy Act is not a Civil Court and, therefore, the proposition that Article 137 of the Limitation Act would be applicable and an application not filed within three years period computed from the date of dispossession will not be maintainable under section 98-A, is thus ill-founded.
6. Mrs. Kulkarni, learned Counsel appearing for petitioners, further submits that unless a case is covered under any of the Clauses (a), (b) or (c) of section 98, no application under section 98 is maintainable. She further submits that in case, there is an alternate remedy available, section 98 cannot be resorted to. So far as the first contention is concerned, there can hardly be any quarrel. Remedy under section 98 is of a summary nature and since it takes away the normal right of a person provisions will have to be construed strictly and unless the case is covered by any of the Clauses (a), (b) or (c), application under section 98 will not be maintainable. Section 98 of the Hyderabad Tenancy Act is quoted below for ready reference :
"Any person unauthorisedly occupying or wrongfully in possession of any land---
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or
(b) the management of which has been assumed under the said provisions, or
(c) to the use and occupation of which he is not entitled under the said provisions, may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector."
According to Mrs. Kulkarni, the transfer in favour of the petitioners was effected with due permission as was required under section 47 of the Hyderabad Tenancy Act and, therefore, it cannot be said that the transfer is invalid and hence Clause (a) is not applicable. Clause (b) is obviously not applicable since it is nobody's case that the management has been assumed under the provisions of the Hyderabad Tenancy Act, and even Clause (c) will not apply since petitioners are purchasers for consideration and transfer having been effected by observing all the conditions laid down by the Hyderabad Tenancy Act, it can never be said that they are not entitled for the use and occupation of the land in question. It is also a contention of the learned Counsel that the existence of an alternate remedy is a bar, not only to the cases under Clause (c) but also to the cases under Clauses (a) and (b) of section 98. Consideration of this submission would be relevant only if we come to the conclusion that alternate remedy exists. It is an admitted fact that the transfer in favour of the petitioners were effected on 16th July, 1957 the day on which their transferrers had no title at all in view of certain provisions of the Hyderabad Tenancy Act. Under section 38-E ownership of this disputed land stood transferred in the name of the respondents with effect from 1st February, 1957 and therefore, predecessors-in-title of the petitioners had no title which could be passed to the petitioners on the day of the transfer i.e. 16th July, 1957. Clause (a) of section 98 will not only cover the cases where the required permission was not obtained or any other condition of the Tenancy Act was not applied, but it would also cover the transfers which became invalid because the transferrer in those transfer was not left with any title due to the statutory transfer effected under the Act. At best, it can be said that because of this transfer dated 16th July, 1957 petitioners stepped into the shoes of the original landlord and since after the declaration, continuation of the possession of the landlord not acceptable to the law, and the declared tenant deemed purchaser had right o get the possession, continuation of the possession of the petitioners can be said to be the use and occupation to which they are not entitled under the said provisions. Therefore the present case is covered both under Clause (a) and Clause (c) of section 98. It is true that an application under Clause (c) of section 98 is maintainable only if the applicant is able to show that there is no other remedy available to him to get the possession. It is the submission of Mrs. Kulkarni that section 38(E)(1) Explanation would be the remedy available to the respondents declared owners. According to her, there is a report of Tahsildar in the permission proceedings instituted under section 47 before the Deputy Collector that the tenants are not in possession of the land and the report is of the year 1956. Relying on this report, Mrs. Kulkarni wants to submit that if the tenants so declared under section 38-E is not in possession of the land on the date of the notification issued hereunder, then he can apply to the Tahsildar for obtaining possession of the declared land. The factual aspect of this proposition is disputed by Shri K.V. Kulkarni, learned Counsel appearing for respondents, and he submitted that there is a finding of fact recorded by the learned Deputy Collector holding that plaintiffs were not in possession of the suit land in the year 1958 and, therefore, they are not entitled for the restoration of possession. The report of the Tahsildar which is relied by the petitioners that the tenants were not in possession in the year 1956 and the observation of the learned Deputy Collector that the declared tenants were not in possession in the year 1958 are both besides point. The question is whether they were in possession on the day of the notification i.e. on 1st day of February, 1957 when the ownership stood transferred in their name. In this respect, it is useful to make a reference to the Pahani-Patrak recording the state of possession about the disputed land. For the year 1956-57, names of Somla, Sitaram, Rama and Narayan are recorded in the revenue record to be in possession. Therefore, it can safely be held that on the day when the ownership stood transferred to the deemed purchasers under the provides of section 38-E i.e. on 1st of February, 1957 they were in possession of the land in question. Remedy under section 38(E)(1) Explanation would be available only in case they were not in possession on the day of the notification. If they were in possession on the appointed day, then the Explanation would be inoperative. If a tenant is in possession on the day when the ownership stood transferred in favour of him, he cannot be put in possession applying the provisions to section 38-E(1) Explanation. Therefore, it will have to be held that in the instant case, an alternate remedy was also not available to the respondents. Mrs. Kulkarni, learned Counsel appearing for petitioners, further contended that since the question whether the titles is validly passed to the petitioners and whether the respondents have a better title by virtue of declaration in their favour than that of the petitioners, is a complicated question of civil nature and, therefore, the Collector should have refrained from exercising his jurisdiction under section 98, and that a remedy of civil suit is always open to the respondents. In support of her contention, she had also relied on a judgment of this Court in the case of Waman Nagorao Deshpande & others v. Dayanand Babu Mitkari & others, 1983 Mh.L.J. 298. In this case, D.B. Deshpande, J., was required to consider whether a declared tenant is entitled to file a civil suit for obtaining possession of the declared land, if he is dispossessed. This Court has held that such a suit would be maintainable and it is not necessary that an application under section 98 should only be resorted. The case is not laying down the proposition that an application under section 98 a not maintainable. Even when a civil suit is not a bar if a statute provides for a summary remedy, a party entitled to the relief under the summary remedy also would be justified in resorting to summary remedy. Since the statute had taken away the ownership of predecessor-in-title of the present petitioners and granted it to respondent-tenants, it is amply clear that sale-deed in favour of the petitioners is absolutely worthless, and if it is so, there was no complicated question of law which was required to be gone into by the Collector in the present application and, therefore, this contention raised by Mrs. Kulkarni will have to be rejected.
7. Mrs. Kulkarni further cited a judgment of this Court in the case of Kashinath Maruti Labase v. Gulab Tulsiram Kolhe & anothers, 1990(2) Mh.L.J. 210. In this case, the landlord had transferred the land by obtaining permission under section 47 of the Hyderabad Tenancy Act but this was without the required notice to the tenant. Therefore, B.N. Deshmukh, J., speaking for this Court, held that if such a permission is there it will have to be ignored and the tenant will have to be put in possession under section 98. Mrs. Kulkarni submits that in that case, permission was obtained without following the due procedure. In the instant case, permission was obtained after following due procedure and, therefore , transfer cannot be said to be invalid. As already said, transfer in the instant case, is not invalid because of the non-observance in pre-condition of transfer laid down by the Hyderabad Tenancy Act but it is invalid on the count that the landlord had no title because of the operation of certain provisions of the Hyderabad Tenancy Act when the transfer was effected. Both the permission and transfer in favour of the petitioners is after the notified day and hence such a transfer in favour of the petitioners cannot create any obstacle in way of the declared tenant to obtain possession of the declared land.
8. At this stage, Mrs. Kulkarni submits that even the statutory transfer in favour of the respondents has become ineffective since they have not deposited the price. This can hardly be a consideration in this case since there is no challenge before this Court to the statutory transfer in favour of the respondents on this ground. This contention is not a subject-matter of any challenge in any proceeding before this Court and, therefore, this question need not be gone into at present.
9. In the result, writ petition is dismissed. Rule is discharged. There shall be no order as to cost of this petition.