A.B. Naik, J.@mdashA short question arises in this Writ Petition, as to whether the landlord who has obtained possession of the land by dispossessing the protected tenant, can be evicted by the Collector or that purpose the Deputy Collector, on an application filed by dispossessed- tenant u/s 98 of the Hyderabad Tenancy and Agricultural lands Act, 1950; ( hereinafter referred to as " the Act"). The petitioners are the heirs of original tenant, who died during pendency of this proceeding, will be referred to as " the tenant" hereinafter.
2. It is not disputed that Land Survey No: 262/A to the extent of 8A 3 G situated at village Kuntur (hereinafter referred to as " the land") was of the ownership of the respondent Dattatraya @ Dattopant Ganpatrao { who hereinafter will be referred to as " the landholder"}. The tenant (i.e. Datta Manika) undisputedly was a protected tenant of the land and declared owner of the land under the provisions of the Act. It is also not disputed that on 26th November, 1980 in File No: KTR -91/60 the Tahsildar/Agril. Land Tribunal, Biloli has fixed the price of the land and issued the order accordingly. From the said order, it is clear that the disputed land stands transferred in favour of the tenant on 25th May 1957 under the provisions of Section 38E of the Act and became owner of the land.
3. On 3rd September 1983, the tenant made an application for restoration of possession of the land u/s 98 of the Act, with prayer that the landholder who obtained possession illegally from him be dispossessed and he be put to possession of the land. He contended in the said that he being the dispossessed protected tenant who become owner of the land under the provisions of the Act. As such, he is declared owner, he is entitled to possession of the land.
4. In support of his contention, the tenant has submitted copy of Panchnama conducted in File No: K/59/62, wherein it is disclosed that the tenant was put in possession.
5. On receipt of the application, notice was served to the landholder who, inspite of repeated chances given, has not filed any written statement/say, but produced some documents objecting the claim of the tenant for possession. During the enquiry, the Deputy Collector recorded a statement of the tenant and two witnesses, namely, Kisan and Nagorao who were initially made parties to the proceedings. Accordingly, after the conclusion of the enquiry, the Deputy Collector (Land Reforms), Nanded by his judgment and order dated 28th April,1986 allowed the application filed by the tenant and directed that he should be put in possession of the land, evicting the landholder.
6. Feeling aggrieved by the judgment and order passed by the Deputy Collector ( Land Reforms) Nanded, the landholder filed an appeal before the Maharashtra Revenue Tribunal ( for short MRT") being Case No: 112/A/78/Nanded. The MRT after hearing both the parties, found that the tenant who was declared owner, has not paid the price and as he has not paid the price and has expressed that he is not ready to purchase the land and, therefore, he found that the tenant is not willing to purchase the land and also not to deposited the price. The learned Designated Member of the MRT placed reliance on the judgment of this Court reported in 1983 Mh.L.J. 434. The MRT came to the conclusion that the tenant is not entitled to the possession of the land by dispossessing the landholder and accordingly, by the judgment and order dated 5.1.1988, the learned Designated Member of the MRT Aurangabad allowed the appeal and set aside the order passed by the Deputy Collector on 28th April,1986 and dismissed the application filed by the tenant. This order is the subject-matter of challenge in this Writ Petition.
7. Shri A.G. Godhamgaonkar, learned Advocate appearing on behalf of the petitioner/s assailed the judgment of the MRT, inter alia, contending that, it is not disputed by the landholder that the tenant is a protected tenant and he has become statutory owner. The learned Advocate, submitted that it is admitted fact that on the notified date, the tenant was in possession of the land and by operation of statute the ownership of the land stand transferred in favour of tenant, and it is also a fact that thereafter the landholder has obtained the possession of the land unauthorisedly for which he is not entitled. He submitted that on the basis of the order of transfer of ownership, the Agricultural Lands Tribunal ( for short "ALT") has also fixed the price of the land. Therefore, on the basis of this order passed by the ALT, he contended that the view taken by the MRT is patently erroneous and inferences drawn by the MRT that tenant has refused to purchase the land and refused to pay the price, are wholly unwarranted and contrary to the legislative intent. The learned Advocate contended that the ratio of judgment of this Court on which reliance is placed by the MRT is not applicable to this case on facts of this case. He further submitted that in view of the recent judgment of the Division Bench of this Court, the ratio of that judgment is no more a good law. He submitted that when it is admitted that the tenant is a protected tenant and the landholder is in possession of the land for which he is not entitled to retain possession, he become unauthorized occupant of the land and, therefore, the provisions of Section 98 of the Act are attracted and the ex-landholder has to be summarily evicted. He further contended that no attempts whatsoever were made by the revenue authorities to recover the price so determined. Unless of the procedure for recovery of prices is followed, it cannot be held that the tenant is not entitled to get possession, as the purchase has not become ineffective. He placed strong reliance on the judgment of Division Bench in the case of Ganpat Deshmukh vs. Yeshwant Deshmukh reported in 2000 (1) M.LJ. 126 and also on the judgment of this Court reported in (1960 ) 62 B.L.R 889. I will refer to the judgment at an appropriate stage.
8. Per contra Shri V.D. Patnoorkar, learned Advocate for the landholder submitted that in 1965 the tenant has voluntarily left the possession of the land. The tenant has made a statement before the Tahsildar to that effect and then only the landholder took possession of the land and, as such, it cannot be said that the landholder is in unauthorized possession of the land and can be evicted in a summary manner. He then submitted that once the tenant refuses to purchase the land, then his right of possession of the land is extinguished and he cannot claim possession back. He, therefore, submitted that the MRT as an appellate authority has, on evidence, come to the conclusion but the tenant has refused to purchase the land and the purchaser has become ineffective as that finding is based on the evidence on record, this Court in a petition filed under Article 227 of the Constitution of India, cannot disturb the said finding.
9. Having given my anxious consideration to the contentions of the learned Advocates for the parties, I am in agreement with the contentions raised by the learned Advocate, I am of the view that the MRT has committed an error, in reaching to the conclusion that by refusal to accept the land and to refuse to pay the price by the tenant, the tenant looses right to get the possession of the land back. It is to be noted that the rights of the protected tenant are recognized by law i.e. section 38 of the Act. Section 38-E confers ownership of the land on the tenant even though he was not in possession on the notified date. The tenant has produced documents, namely, the order passed by the ALT fixing the price ordering the transfer of the land in favour of the tenant on 25th May 1957 i.e. notified date and the Panchnama of delivering the possession. Once the land stand transferred by operation of law, the landholder is not at all entitled to take possession of the land on the ground that the tenant left the possession voluntarily as, under law, the landholder is not entitled to retain the possession of the land which is statutorily transfer to the tenant. Therefore, in my judgment, the proceedings that are adopted by the tenant u/s 98 of the Act, are only the remedy available to the tenant to recover the possession from the ex-Landholder. In my judgment, the tenant is entitled to take possession for ex-landholder by resorting to summary remedy u/s 98.
10. The MRT on wrong assumption and wrong interpretation of Section 38 sub-section (3) has reached to the conclusion that the tenant has refused to pay the price and refused to accept the possession. This observation of the MRT runs contrary to the documents which are produced on record. It has come on record that by a Panchnama (in File No: K-59/62), the tenant Datta Manika was put in possession on the land. The Panchanama is not challenged by the landholder and once it is accepted that the tenant was put in possession of the land, it will have to be presumed for all practical purposes the tenant is in possession of the land. The record which is produced shows that some time between 1980 and 1982, the landholder dispossessed the tenant from the land and obtained possession without adopting any legal remedy. Therefore, the conclusion drawn by the MRT runs contrary to the admitted facts on record.
11. Coming now the judgment of this Court in the case of Hanmantrao Vithalrao vs. Bhimrao and others reported in 1983 M.L.J. 434 which is relied on by the Tribunal in allowing the appeal filed by the tenant. Shri Patnoorkar, also placed reliance on this judgment. This Court in Hanmantrao case considering the provisions of Section 38E, second proviso, of the Act, which arose on the following facts which are summarised as follows:
12." A piece of land was in possession of the tenant on commencement of the Hyderabad Tenancy and Agricultural Lands Act, the proceedings u/s 38 of the Act were commenced. In that proceedings, a declaration of ownership was made in favour of the tenant. In those proceedings the tenant appeared. The landlord questioned the status of the tenant. When the enquiry was going on, the tenant expressed his unwillingness to purchase the land by a written application. On the basis of the said application, the Deputy Collector accepted the refusal and dropped the proceedings by an order. Thereafter the Tahsildar, passed an order on 22nd May 1971. After the said order, the original tenant died on 5th Apri,1976, and his son Bhimrao gave an application to Tahsildar for restoration of possession of the land to him, on the ground that his father was a statutory owner and after death of his father, he is entitled to succeed the tenancy and prayed for possession of the land.
On the basis of the said application, the Tahsildar conducted an enquiry and after hearing both the parties, on 5th October, 1976 the Tahsildar allowed the application and directed the delivery of possession of the land to the tenant holding that the landlord failed to establish and prove that the declaration was cancelled.
Pursuant to the said order, on 30th April,1977, the Revenue Inspector was directed by Tahsildar to hand over the possession of the land to the tenant. Thereafter, the landlord filed two appeals challenging the original declaration made u/s 38E in favour of the tenant and second in respect of the order dated 5th October 1976. However, another appeal filed by the landlord was not decided. The order of delivery of possession by the Tahsildar was subject-matter of the appeal and the Deputy Collector on 3rd August, 1977 disposed of the appeal. On dismissing the appeal, the aggrieved party appeared before the Tribunal by filing Revision Application and the Maharashtra Revenue Tribunal dismissed the revision and confirmed the order passed by the Deputy Collector. That order was subject of Writ Petition. It was contended before this Court, on refusal of the tenant to purchase the land, whether the statutory ownership transferred and the sale thereof whether becomes ineffective. Besides this question, good deal of contentions were raised regarding surrender of tenancy by the tenant. " As I am not dealing with question of surrender by the tenant in this Petition and, therefore, it is not relevant for my purpose to refer to those contentions.
This Court on considering the provisions of Section 38 of the Act, held that as the tenant was not prepared to pay the price and the statement so made by the tenant before the Tahsildar clearly falls within the ambit of second proviso of sub-section (3) of Section 38-E of the Tenancy and as there is total refusal on the part of the tenant to pay any price, the transfer becomes ineffective. On this basis, the Petition was allowed.
13. Similar question as in case of Hanmantrao ( supra) came for consideration before this Court in the case of Narayan Laxmanrao Patil vs. Keshav Bhimji (1960) 62 BLR 889 where the learned single Judge of this Court( V.A. Naik J.: as then he was) was dealing with identical situation, but on slight different facts, namely, as there was challenge to provisional declaration u/s 38E made in favour of tenant. The learned single Judge ( Naik, J.) has an occasion to consider the provisions of Section 38E of the Tenancy Act. The facts, in brief, in Narayan''s case can be noted which are as follows:
"The petitioner -Narayan Laxman was the owners of Survey No. 821 situate at Shevar and one Keshav Bhimji was the tenant in respect of the said land. The provisional declaration was made u/s 38E of the Hyderabad Tenancy and Agricultural Lands Act in favour of the tenant. Thereafter the landlord made an application to the Tahsildar contending that his holding is less than extent of 2 family holding. In that proceedings, the tenant made an application before the Tahsildar stating that he was not prepared to purchase the land Survey No. 821. The Tahsildar held that the holders holding was more than the extent of two family holdings and at the same time held that in as much as the tenant was not prepared to purchase the land and ordered that the land should be reverted to the Government. After the said decision, the land holder appealed to the Collector. During pendency of the appeal, the tenant filed an application before the Collector stating that he has been deceived by the landlord into making an application before the Tahsildar to the effect that he was not prepared to purchase the suit land. He stated that he was prepared to purchase the same at the price fixed by the Government. This application was not considered by the Collector who upheld the decision of the Tahsildar. Against the said order, the land holder approached this Court by filing the Revision Application. The landlord challenged the said order on several ground ;but the relevant for my purpose is the contention about refusal by a protected tenant to purchase the land, and its effect? It was argued before the learned single Judge that mere refusal on the part of the protected tenant, does not amount to surrender or relinquishment of his tenancy rights, challenge to the orders was that whether on failure to purchase the land by the tenant whether land vests and reverts back to the Government. This Court found that there is no provision under the Tenancy Act that on refusal to purchase of the land by the tenant, the land reverts to the Government. This Court found that the order of the authorities whereby the authorities under the Act have held that on refusal to purchase the land by the tenant, the land reverts to the Government. With this background, this Court considered the provisions of the Tenancy Act and the purpose for which the Act is enacted. This Court in Narayan''s case thus concluded by considering the scope of Section 38E of the Tenancy Act in the following manner:
" Apart from the above, it is clear that the Courts below have failed to give effect to the provisions of law and, in particular , the provisions of S.38E of the Act. This Section contains special provisions and overrides the provisions of S.38 in so far as the former provisions are made applicable. Section 38 of the Act contemplates a regular sale by the landholder in favour of the tenant, beginning with an offer being made by the tenant in regard to the price, fixing the price and the mode of its payment under the procedure laid down and culminating in the passing of sale deed etc. Section 38 expressly lays down that "
Notwithstanding anything in this Chapter (Ch.IV) or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary..." That means, where section 38E applies, S. 38 will have no application except so far as it has laid down in sub-s. (7) of s.38. At the time, it is clear that there is no conflict between the provisions of ss. 38 and 38E of the Act. Section 38E applies when the government issues a notification that the same may be applicable in respect of a particular area. Section 38E provides for a statutory transfer of ownership and it does not contemplate the execution of a sale deed by the vendor in favour of the vendee. A protected tenant becomes the owner of the land by virtue of the provisions of Section 38E of the Act. When all the conditions laid down in that section have been fulfilled not withstanding that a regular sale deed has not been passed. There is nothing to suggest in the wording of s. 38E of the Act that it allows a sort of option to the tenant. The scheme of Section 38E of the Act is broadly follows: (underline is mine): A provisional declaration is made in favour of the protected tenant declaring that he is the owner of the land. Objections are invited from the landholder. After hearing the objections, if the appropriate authorities come to the conclusion that the landholder cannot be allowed to retain the land, then a reasonable price for the land is to be fixed. Sub-section (3) of Section 38E of the Act lays down that an application should be made by the landholder within 90 days from the date of declaration, for fixing a reasonable price. There is no corresponding obligation laid on the tenant. If the landholder fails to make an application within the prescribed time, then the Tribunal must fix the price on its own motion. The first proviso to sub-section (3) lays down that if a protected tenant commits default in payment of any installment, the same can be recovered by the Government as arrears of land revenue and paid to the landholder. The second proviso to the same sub-section, however, lays down 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."
In the present case, the case of fixing the price has not yet arrived, because the landholder has intervened and put in his objections. It is at this stage that the tenant is supposed to have stated before the Tahsildar that he was not prepared to purchase the land. Even so, the only logical course open to the Tahsildar and the Collector was to direct the Tribunal to fix a reasonable price because both of them came to the conclusion that the petitioner was not entitled to retain the suit land. (underline is mine). Once the price is fixed and is made payable by installment, then the installment can be recovered as arrears of land revue, in case the tenant does not pay the same, and made over to the landholder. There is, therefore, no room for an argument that the choice lies with the protected tenant either to purchase the land or reject the same. Mr. Vaishnav relied, in particular, on the second proviso to sub-s. (3) of S. 38E of the Act and contended that there is no complete transfer till the entire price of the land has been satisfied. No doubt, the wording of the second proviso seems to lend support to Mr. Vaishnav�s argument. But that contingency has not yet occurred. in this case. In case the protected tenant proves to be recalcitrant and refuse to pay the price and if no recoveries are made even by issuing a coercive process under the Land Revenue Act, then certainly, the contingency contemplated by the second proviso would materialise and the transfer would become effective."
It is to be noted by me that the judgment of Narayan Laxman was not brought to the notice of the learned single Judge (D.B. Deshpande J. as he then was) when he decided the case of Hanmantrao.
14. Apart from this, the Division Bench of this Court in Ganpatrao''s case has considered the effect of the provisions of Section 38 and also refusal by the tenant to purchase the price or failure to pay the price. Considering the above- said two judgments of Ganpatrao''s case and Narayan''s case, the view taken by the learned single Judge in Hanmantrao case will have to be considered as impliedly overruled. It is to be noted that the Division Bench of this Court in Ganpatrao''s case has considered the scope of Section 38, 38E and the effect of the tenants either failure to pay the price or refusal by the tenant to purchase the land. Refusal or failure, by itself, cannot result into cancellation of ownership unless the procedure contemplated u/s 38E and other allied provisions are followed.
15. The judgment which is relied on by Shri Godhamgaonkar i.e. in Ganpats ( supra ), the ratio laid down in the above-said judgment is squarely applicable in the present case. The Division Bench has an occasion to consider the provisions of Section 38E of Hyderabad Tenancy and Agricultural Lands Act. The learned single Judge of this Court (B N Deshmukh, J.) ( as then he as) did not agree with the view taken by the another learned single Judge ( Kanade, J.) ( as then he was) who referred the petition to the Honorable the Chief Justice for placing it before the Division Bench. Accordingly, the Honorable Chief Justice by the order dated 25th November 1999 referred the said Writ Petition for hearing before the Division Bench.
16. The facts in Ganpatrao s case ( supra) were that the petitioner Ganpatrao was the owner of agricultural land admeasuring 3 A 4G in Survey No. 28 and 3A and 7 G in Survey No. 29 of village Khadki Ghat in Tq. and Dist. Beed and the respondent was a protected tenant over the land. The respondent was declared as owner of the land u/s 38E of the HT & AL Act ( the Act for short) and by an order dated 18.12.1959, the Agricultural Lands Determination Tribunal has fixed the price of the said land and directed the price to be paid in six equal installments commencing from 21st April,1960. The period of payment expired in the year 1965and therefore, the Tribunal issued four notices of demand against the tenant and despite these notice the tenants did not deposit the purchase price of the land. As the tenant has not paid the price the landlord filed an application before the Tribunal seeking two reliefs (i) that the declaration u/s 38E be declared ineffective and (ii) recovery of possession of the subject land. The Tribunal conducted an enquiry and the Tribunal by the order dated 21.1.1982 held that the declaration and the transfer of ownership was ineffective as per the provisions of Section 38 (6)(d) of the Act and turned down the claim of the tenant for possession . The Deputy Collector, allowed the appeal by directing the Tribunal to fix the purchase price afresh. The Deputy Collector observed that the original declaration could not be cancelled and cannot be held ineffective for non-deposit of price by the tenant and the price of the land should be fixed afresh. Being dissatisfied with the order passed by the Deputy Collector the landlord approached the MRT by way of Revision and the Tribunal remanded the matter to the Tahsildar and directed to limit the scope of his enquiry only to the extent of recovery of the price to be fixed along with interest and if such amount could not be recovered as arrears of land revenue, then only it be declared that the transfer of the land as ineffective u/s 38(3) of the Act.
17. The facts before me in this case are strikingly similar; as I have already stated the facts of this case. Now considering the observations made by the Division Bench while interpreting the provisions of Section 38 the Division Bench proceeds to observe thus:
4. Section 38E of the Act provides for the rights of the protected / ordinary tenant and sub-section (1) states that a protected tenant or as the case may be ordinary tenant ( not being a tenant holding land from a landholder who is a serving member of the armed forces) shall at any time after the commencement of the Act be entitled to purchase the landlords interest in the land held by the former as protected tenant, or, as the case may be ordinary tenant. As per sub-section (2) a protected tenant who desires to exercise the right conferred by sub-section (1), shall make an offer to the landholder stating the price which he is prepared to pay for the landholder interest in the land upto 15 times for dry land and 8 times for wet lands, ( irrigated by wells) and 6 times of wet lands, irrigated by other other sources of rent payable by him and where he is not entitled to purchase whole of the land, the portion thereof which he is entitled to purchase. Same right is also available to an ordinary tenant under sub-section 2A(a) and as per sub-section (3), if the landholder refuses , or fails to accept the offer and to exercise 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. The Tribunal shall after following the procedure as prescribed under sub-section (4) determine the reasonable price of the land and the said price is required to be deposited with the Tribunal by the tenant under sub-section (5) .Sub-Section (6) states that 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 the purchaser of the land and such certificate shall be conclusive evidence of the sale as against the landholders and all persons interested therein. Clause A to C of sub-section (6) provide the procedure for recovery of the reasonable price with interest, etc. and the amount being paid to the landholder. Clause (d) of the sub-section (6) which is relevant to our decision in the present petition reads:
"(d)If the protected tenant ( or, as the case may be, ordinary tenant) fails to pay the entire amount of the reasonable price within the period fixed under sub-section (5) or the same is not recovered from him, the purchase by the protected tenant ( or, as the case may be, ordinary tenant ) shall not be effective and he shall forfeit the right of purchase of the land, and the amount paid by him towards the reasonable price shall be refunded to him with interest at three percent per annum together with land revenue paid by him if any, after deducting there from the rent due from him for the period:
Provided that if the amount of reasonable price in respect of which the protected tenant ( or, as the case may be ordinary tenant ) has committed default, does not exceed one forth of the price fixed by the Tribunal under sub-section (5) the right of purchase of the protected tenant ( or, as the case may be ordinary tenant) shall not be forfeited and Tribunal shall cause the balance of reasonable price to be recovered as arrears of land revenue and paid to the landholder."
5. Section 38E was added in the Act by Act No: III 1954 and Section 1 of the said Act states that notwithstanding anything in Chapter IV A or in law for the time being in force or in customs, usages, 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 landlords in such area under any provision of the said Chapter shall stand transferred to and vested in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands. For Beed District, the relevant date of transfer of ownership under sub-section (1) of section 38E is 31.1.1957. Sub-Section (2) provides for a certificate being issued in the prescribed from declaring the protected tenant to be the owner and notice of such issuance to be simultaneously issued to the landlord and such certificate shall be conclusive evidence of the protected tenant having become owner of the land w.e.f. the date of the certificate, as against the landholder holder and all other persons having any interest therein. Sub-Section (3) states that within 90 days from the date specified in the Notification u/s 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 sub-section (1) and if an application is not filed within such period by the landlord, the Tribunal may suo motu proceed to determine such price and thereupon all the provisions of sub-section (4) to (9) of Section 38 shall mutatis mutandis apply to such application. For our decision on the point of reference, it is necessary to reproduce the following two proviso to sub-section (3) of Section 38-E of the Act.
".......Provided that if the protected tenant commits default in respect of any installments, it 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 @ 3% p.a. and the land revenue paid by him, if any after deducting there from the rent for the period."
8. Both Sections i.e. 38 and 38E are required to be read independent of each other specially when Section 38 applies for both protected as well as ordinary tenant and deals with a voluntary act on the part of the tenant and the landlord and section 38E deals with the statutory right of ownership automatically from the date notified by the Government in favour of protected tenant alone and there is no role assigned to the landholder except to apply for fixation of a reasonable price. To make transfer u/s 38E effective, the provisions of sub-section (3) of the said section alone will apply and the provisions of Clause (d) of sub-section (6) of Section 38 do not come into play at all. Both the provisions apply in the case of respective purchase transfers independently and it cannot be read that for declaring the purchase transfer u/s 38E as ineffective, the provisions of Clause (d) of sub-section (6) of section 38 would apply."
18. In view of the judgment of the Division Bench of this Court in Ganpatrao''s case ( supra), the judgment of this Court in Hanmantrao vs. Bhimrao reported in 1983 M.L.J. 434 stand impliedly overruled.
19. Reverting back to the facts in the present case, that the land stand transferred to the tenant on 27th May 1957. After declaration till 1965 the tenant was in possession of the land and in the year 1965, the tenant files an affidavit before the Tahsildar expressing his intention not to purchase the land though ownership stand transferred in his favour. The MRT was impressed by this act of the tenant, but it is to be noted that though the landholder claims that in 1965 the tenant surrendered the land to him, by this time the tenant has become statutory owner of the land. If the landholder claims that he took possession of the land in 1965, then he should have approached the Revenue authority to mutate his name in the revenue record pertaining to suit land. In the absence of any such efforts by the landholder, it will be difficult to hold that tenant becoming owner has surrendered the land in favour of the landholder. On the contrary, the price of the land was fixed ; once the price is fixed then only ministerial act remains to be done i.e. to recover the price, which admittedly not done in this case and on the basis of so called affidavit filed by the tenant one cannot jump to the conclusion that the tenant refused to purchase the land and, as such, the land can be reverted back to the landholder.
20. There are some documents produced on record, such as, statement of the tenant recorded by the Tahsildar on 11th October 1965 whereby the Tahsildar has recorded the statement of the tenant. In the said statement, the tenant has made a statement that he is not interested in taking possession of the land as he has voluntarily relinquished his right. But such an act on the part of the tenant will not disentitle the tenant to claim possession of the land. As this statement is recorded much after the transfer of land which was effected on 25.5.1957. This Court in Narayan''s case ( supra) noted the importance of Section 38-E. It is to be noted that scheme of the Tenancy Act is to protect the tenant and even in cases when the tenant failed to pay the price or refused to purchase the land, the authorities has to proceed in accordance with the provisions of the Act. Merely because the tenant refused to purchase the land or take the possession of land, does not mean that the landlord is entitled to possession of land so declared in favour of the tenant. From the record, it is clear that the date of vesting of the land in favour of the tenant is 25th May 1957 and since 1957 the tenant has become the owner of the land and the tenant by any means cannot surrender the lands in favour of the landlord. It is to be noted that how the tenant can surrender his right of tenancy is also governed by the Act. No proceeding as required under the Act regulating surrender has been taken by the landholder and placing reliance on the affidavit filed in 1965, cannot be called as valid surrender. The proceedings which are relied on by the landholder are that of 1965, as surrender itself void ab initio that by itself gives any right to the landholder to contend that he received possession as the tenant was not willing to continue the possession. In view of this undisputed position the landholder cannot retain the possession of land, because his possession became unauthorized from the notified date. With this backdrop I have to consider the correctness of the order passed by the MRT. I noticed from the record that (i) tenant was a protected tenant (ii) there is declaration in his favour (iii) the price has been fixed (iv) no proceedings for recovery of price as contemplated u/s 38 sub-section (5) has been initiated by the tenancy authorities.(v) No record is produced by the landlord that any time the tenant has refused to purchase the land and the authorities record the statement to that effect. The act of refusal is to be established as a " fact" and on assumption and presumption no inference can be drawn. It is to be noted that the petitioner is accepted to be the tenant and the statute conforms the ownership on the tenant, the cancellation and / or invalidation of ownership also must be provided by the statute. A statutory right cannot be taken away or given up even by the act of parties, in absence of any positive evidence produced by the landholder that the tenant has refused to purchase the land. The findings so recorded by the MRT is thus without any basis, in view of this aspect, the documents relied on by the landholder which are of the year 1965 cannot be accepted to have any effect on the right of the tenant to get back the possession.
21. Considering the judgment of the Division Bench in the case of Ganpatrao and single Judge judgment of Narayan ( supra) , I am of the opinion that the Maharashtra Revenue Tribunal has gone wrong in upsetting the order passed by the Deputy Collector by which the Deputy Collector directed that the tenant be put in possession after dispossessing the landholder.
22. Therefore, in my judgment, the Tribunal has committed a manifest error in allowing the appeal and dismissing the application filed by the tenant on unsustainable grounds. The view taken by the MRT is patently erroneous. Once it is held that the protected tenant is declared owner unless and until the ownership is not cancelled by following due process of law, or the procedure prescribed under the Act, the land vest in the tenant and he being statutory owner and the landholder who is occupation of the lands, becomes unauthorized occupant of the land and, as such, he has to be evicted in a summary manner as provided u/s 98 of the Act. Therefore, in my judgment, the submission made by the learned Advocate Shri Godhamgaonkar are to be accepted and the view taken by the Deputy Collector is to be restored by setting aside the order passed by the MRT, by issuing writ of certiorari. Accordingly Rule is made absolute. The order passed by the MRT in Case No: 112/A-1986 Nanded dated 5.1.1998 is quashed and set aside and the order passed by the Deputy Collector,(Land Reforms) Nanded in Case No: 1988 /TNC/88-CR -73 dated 28th April,1986 stands restored. It is directed that the respondent/landholder Dattatraya @ Dattopant Ganpatrao Kulkarni be evicted from the land Survey No: 262/A admeasuring 8A 3G situated at village Kuntur Tq. Biloli and tenant be put in possession.
23. The Tahsildar, Biloli is directed to recover the price of the land as fixed by the order dated 26.11.1980 and the same be recovered from the tenant as per the Act and be paid to the landlord. As the possession has been wrongly obtained and landholder and is enjoying the possession, the respondent shall pay cost of the petitioner throughout.
