1. Rule. Rule made returnable forthwith and heard finally with consent of parties.
2. The present petition is filed in order to challenge judgment and order dated 04.09.2017 passed by the President, Maharashtra Revenue Tribunal, Mumbai Camp at Aurangabad (for short ‘MRT’) in Revision Petition No.52/B/2015. By said judgment and order, learned MRT has set aside order dated 30.01.2014 passed by learned Tahsildar, Bhoom in Case No.2012/Land Reforms/Kavi-121/CR-10 and order dated 14.05.2015 passed by the Deputy Collector, Osmanabad in File No. 2014/Gen.Admn./Land Reforms-1/Kavi-100.
3. Present Respondent Nos.1 to 7 had filed proceedings before the Tahsildar interalia praying that an ownership certificate with respect to suit property which comprises of land bearing Gat No.441 admeasuring 4 acres 18 Gunthas be issued in their favor by determining reasonable purchase price. The said application came to be rejected by the Tahsildar by order dated 30.01.2014. Being aggrieved by the said order dated 30.01.2014, respondent nos.1 to 7 preferred an appeal before the Deputy Collector, which was also dismissed by order dated 14.05.2015. These two orders came to be assailed by respondent nos.1 to 7 by filing a revision before the MRT, which came to be allowed. The petitioners have filed present petition challenging said revisional order passed by learned MRT.
4. The controversy between the parties pertains to agricultural land admeasuring 4 Acres 18 Gunthas being a part of Gat No.441 situated at Village Mankeshwar, Taluka Paranda (Bhoom), District Osmanabad/Dharashiv. The suit property belonged to late Bhagwan Baburao Madi, predecessor of respondent nos.8 to 13. Late Bhagwan had let the suit property at lease to deceased Murlidhar Kadam, father of respondent nos.1 to 7 vide lease deed dated 03.01.1974 for a period of 3 years. The tenancy is governed by the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short ‘Tenancy Act, 1950’).
5. Murlidhar (tenant) had instituted a suit against Bhagwan (landlord) being Regular Civil Suit No.28 of 1976 seeking decree of perpetual injunction against forcible dispossession. Issue of tenancy had cropped up in the said suit, which was referred by the learned Civil Court for adjudication to the Tahsildar. The Tahsildar passed order dated 28.02.1979 holding that Murlidhar was a tenant of the suit property. This order dated 28.02.1979 was challenged by Bhagwan by filing an appeal, which came to be allowed by the Additional Collector by order dated 31.08.1982. The appellate order passed by the Additional Collector was challenged by Murlidhar before learned MRT. The said revision came to be allowed by judgment and order dated 05.07.1983. The order passed by the Tahsildar holding that Murlidhar was a tenant of the suit property was upheld. Murlidhar had filed Writ Petition No. 635 of 1989 challenging the revisional order passed by the MRT, which was also dismissed by judgment dated 14.09.2004.
6. It will be pertinent to state that while RCS No.28 of 1976 was pending, Bhagwan (landlord) sold the suit property to the present petitioners vide sale deeds dated 07.04.1982 and 11.04.1983. The civil suit for injunction filed by Murlidhar (tenant) came to be decreed by the learned Civil Court by judgment and decree dated 30.04.1986. Murlidhar (tenant) filed execution petition bearing Regular Darkasht No.47 of 1987. In the said execution petition, the present petitioners (purchasers) filed application contending that the decree passed in RCS No.28 of 1976 is not executable against them. Learned executing Court rejected the said objection by order dated 30.03.1990. Regular Civil Appeal No.90 of 1990 filed by the petitioners (purchasers) against the order dated 30.03.1990 came to be dismissed by judgment dated 19.01.1999.
7. It will also be pertinent to state that the petitioners (purchasers) had instituted Regular Civil Suit No.56 of 1988 for perpetual injunction against Murlidhar (tenant), which came to be dismissed on 29.02.2000. The petitioners (purchasers) preferred Regular Civil Appeal No. 63 of 2000 against the said judgment in which application for grant of temporary injunction was filed, which was also rejected by order dated 20.06.2001.
8. Murlidhar (tenant) had moved an application for recording his name in the other rights column in the record of rights. The said application was allowed by Tahsildar. Against the said application, the purchasers preferred appeal before the Sub-Divisional Officer, which was also dismissed. The petitioners (purchasers) preferred an appeal before the Additional Collector, which was partly allowed. The Additional Collector had quashed and set aside said orders passed by the Tahsildar and Sub-Divisional Officer and remanded the matter back for fresh inquiry. The said order was set aside by the Additional Commissioner, Aurangabad by judgment and order dated 23.11.2001 passed in 1999/ROR/Rev.Pet./183, thereby maintaining Mutation Entry No.919, recording name of Murlidhar (tenant) in the cultivating column.
9. In this set of facts, respondent no.1 moved an application before Tahsildar on 13.08.2012 interalia praying for issuance of ownership certificate with respect to suit property. Thereafter, another application dated 24.01.2013 was filed for the said purpose. In this application, respondent nos.8 to 13 and present petitioners were also arrayed as parties. The present petitioners (purchasers) opposed the application. The said application came to be rejected by the Tahsildar by order dated 30.01.2014. The Tahsildar has held that Murlidhar (tenant) was not a protected tenant but merely an ordinary tenant. Reliance is placed on Section 38(7) of the Tenancy Act to hold that the tenant was not entitled to purchase the land, since total area of suit property is 27 Acres, which is less than one family holding i.e. 30 Acres. The Tahsildar has also held that the applciation ought to have been filed within a period of one year from the date of commencement of tenancy in view of Section 38H of the Tenancy Act. It is also observed that the name of tenant, Murlidhar, was removed from 7/12 extract from the year 1981-82 and as such, he was not cultivating the suit property.
10. Being aggrieved by the said order, respondent nos.1 to 7 preferred an appeal under section 90 of Tenancy Act, which was also dismissed by order dated 14.05.2015 passed by the Deputy Collector. The Deputy Collector has placed reliance on Section 38H of the Tenancy Act to hold that an application for fixing purchase price was required to be filed within a period of one year from the commencement of tenancy and as such, the application filed in the year 2012 was liable to be rejected in view of the said provision. Apart from this, reliance is also placed on Section 38(7) to hold that the tenant is not entitled to purchase the suit property since the total holding of the landlord is less than one family holding.
11. Aggrieved by this order, respondent nos.1 to 7 preferred a revision before learned MRT, which came to be allowed. The learned MRT has held that since the landlord wish to sold the suit property to the present petitioners, Section 48 of the Tenancy Act will be attracted and Sections 38H and 38(7) are not attracted, in case right to purchase is exercised as per Section 48. In view of aforesaid, learned MRT allowed revision filed by the respondent nos.1 to 7, which is subjected to challenge in the present petition by the petitioners (purchasers).
12. Mr. Bhandari, learned advocate for petitioners, contends that even if father of respondent nos.1 to 7 is held to be tenant, since he is not a protected tenant and the tenancy is created much beyond the tillers date, right to purchase the property ought to have been exercised within a period of one year from the date of commencement of tenancy as per mandate of Section 38H of Tenancy Act. Learned advocate contends that the application for fixing purchase price is filed way beyond the prescribed period of limitation under Section 38H and was rightly rejected by the Tahsildar and Deputy Collector.
13. Mr. Bhandari vehemently argues that although Section 48 does not stipulate a time frame to exercise right to purchase property, nonetheless an application for purchase of property must be made within a reasonable period. Learned advocate vehemently argues that in the case at hand, the sale deeds in question are dated 07.04.1982 and 11.04.1983 and the application for purchase is made in the year 2013 i.e. after a period of around 30 years from the second sale deed and 31 years from the date of first sale deed. Learned advocate vehemently argues that the applications ought to have been rejected on the ground of delay itself. Apart from this, learned advocate vehemently argues that Section 48 does not confer any right to purchase property upon the tenant.
14. Learned advocate would make a submission in the alternative that even if it is assumed that sale deeds dated 07.04.1982 and 11.04.1983 executed in favor of petitioners are invalid, that by itself will not entitle respondent nos.1 to 7 to purchase the suit property under Section 48.
15. Learned advocate also argues that in the earlier civil suit, a Court Commissioner was appointed by learned Civil Court and possession of the suit property was delivered to the petitioners through the Court Commissioner and, therefore, the contention of respondent nos.1 to 7 that they are in possession of suit property ought not to have been accepted.
16. Per contra, Mr. Gunale, learned advocate for respondent nos.1 to 7 supports the order. He contends that the tenancy litigation between the parties was continuing for an inordinately long period, as a consequence of which the application could not be filed earlier. Learned advocate contends that an application filed shortly after litigation with respect to status of respondent nos.1 to 7, as tenants of suit property was settled. It is also contended that provisions of Section 38(7) and 38H will not be applicable to the case at hand, where right to purchase is exercised as per Section 48.
17. With respect to the contention of Mr. Bhandari that the respondents were not in possession, reliance is placed on judgment and decree passed in RCS No.28 of 1976 wherein decree of perpetual injunction against forcible dispossession is passed in favor of respondents and against vendor of the petitioners. Reference is also made to rejection of objection filed by the petitioners that the decree in the aforesaid suit was not binding on them. It is contended that the petitioners cannot dispute status of tenant of the respondents and the fact that they are in possession of the suit property.
18. Section 38 and 38H of Tenancy Act fall under Chapter 1V-A of the said Act. The said Chapter is titled as “Rights of Protected Tenants Ordinary Tenants and Landholders”. Section 48 is included in Chapter V, which is titled as “Restrictions on Transfers of Agricultural Lands”. Section 38 deals with the rights of protected tenant to purchase land. Sections 38A to 38H regulate the procedure for purchase of land by the agricultural tenant. The said provisions deal with the right of tenant to purchase the agricultural land against the wish of the landlord. Under the provisions of Chapter IV, a tenant has a right to purchase the property from his landlord, although the landlord may not willing to sell the same. As against this, Section 48 of the Tenancy Act provides that where the landlord himself intends to sell any land which is occupied by a tenant, he shall apply to the Agricultural Tribunal for determining the reasonable price thereof and after the price is determined, make an offer to the tenant to sell such land. Thus, Section 48 deals with the situation where the landlord at his own volition intends to sell the land.
19. It will be appropriate to first deal with the contention of Mr. Bhandari with respect to Section 38(7) of the Tenancy Act. Section 38(7) reads as under :
“38. Right of protected tenant to purchase land.
(7) The right of a protected tenant under this section to purchase from his landholder the land held by him as a protected tenant shall be subject to the following conditions, namely:-
(a) If the protected tenant does not hold any land as a landholder the purchase of the land held by him as a protected tenant shall be limited to the extent of the area of a family holding for the local area concerned.
(b) If the protected tenant holds any land as a landholder, the purchase of the land held by him as a protected tenant shall be limited to such area as along with other land held by him as a landholder will make the total area of land that will be held by him as a landholder equal to the area of a family holding for the local area concerned:
Provided that the land remaining is more than the land which the protected tenant is entitled to purchase under this section, the first preference to purchase the said land, at the prevailing market price in the local area, shall vest in the protected tenant:
Provided further that in the case of purchase by any person other than the protected tenant, the rights and interests of the said tenant in the lease land, shall continue as before.
(c) The extent of the land remaining with the landholder after the purchase of the land by the protected tenant, whether to cultivate it personally or otherwise, shall not be less than two times the area of a family holding for the local area concerned.]”
20. It is true that the total area of Gat No.441 is 27 Acres which is less than one family holding i.e. 30 Acres. Perusal of Section 38(7) of the Tenancy Act indicates intention of the legislature to protect ownership and possession of agricultural land of the landlord to the extent of one family holding. The legislative intent is that the total holding of landlord should not be less than one family holding even after the tenant enforces right to purchase agricultural land occupied by him as a tenant. While conferring statutory right of purchase upon tenant, the legislature has also taken care to safeguard the interest of landlord by protecting ownership of the landlord to the extent of one family holding. It will also be pertinent to state that the right to purchase land in favor of tenant is also restricted to one family holding in case where tenant does not own any other land and in case where the tenant holds any other land, right of statutory purchase is restricted only to such area as upon being added with the area of land already owned by him would be equal to one family holding. However, this provision is applicable only where the tenant enforces his statutory right of purchase under Chapter IV of the Tenancy Act.
21. The said provision will not be applicable to sale under Section 48. Section 48 contemplates a case of voluntary sale by the landlord. There is no compulsion to sell the property on the landlord under Section 48. Section 48(1), however, provides that when landlord intends to sell the property occupied by a tenant, he must approach the Agricultural Land Tribunal (ALT) to determine a reasonable price for the land proposed to be sold. Section 48(2) imposes an obligation on the landlord to make offer to a tenant to purchase the land on the price determined by the ALT.
22. In light of Section 48(2), a statutory obligation was cast on the petitioner's/vendor/landlord to first make an application to ALT for determining the reasonable purchase price for the suit property and upon such price being fixed, to make an offer to the tenant (predecessor of respondent nos.1 to 7) to purchase the suit property at the price to be fixed under Section 48(1) of the Tenancy Act. The sale deeds dated 07.04.1982 and 11.04.1983 are executed without following the said statutory mandate. Section 48(7) clearly provides that any sale deed made in contravention to Section 48 shall be invalid. The said sale deeds are obviously illegal.
23. Mr. Bhandari, however, contends that the consequence of sale deeds being illegal is not provided under the Act and, therefore, merely because the sale deeds are executed in favor of petitioners without following the mandate of Section 48(1) and (2), it cannot be said that the sale deeds would be void and consequently, there would be a right vested with respondent nos.1 to 7 to purchase the said land. I am afraid, the said contention cannot be accepted. The landlord has sold the property in breach of Section 48 of the Tenancy Act. Section 48(2) confers right upon the tenant to purchase the land in case where landlord intends to sell the same. The landlord was under obligation to get the price fixed under Section 48(1) and then to make an offer to the tenant to purchase the same at the price fixed. Since the landlord has sold the property, it is obvious that he had intention to sell the same which by itself confers right upon the tenant to exercise the option of purchasing the same at the price fixed under Section 48(1).
24. Section 38H prescribes limitation of one year for the tenant to exercise right of purchase of land held by him on lease, in case where the tenancy is created after the date notified under Section 38G. The said provision also deals with a situation where the tenant intends to purchase the land against the wish of landlord by enforcing statutory right of purchase. The said provision will not be attracted in case at hand where the landlord himself wanted to sell the agricultural land. The limitation imposed under Section 38-H will not be applicable in case of sale under Section 48. Learned MRT has rightly considered the legal position in this regard.
25. As regards the contention with respect to delay, it must be stated that there was long-drawn litigation between the parties. The litigation was on several fronts namely civil suit, execution proceedings, tenancy authorities and revenue authorities. The petitioners are lis pendens transferees being purchasers of suit property while RCS No.28 of 1976 was pending. The RCS No.28 of 1976 is decided in favor of respondent nos.1 to 7 and they are held to be in possession of suit property and a decree of perpetual injunction against forcible dispossession is passed in their favor. The petitioners who are lis pendens transferees cannot claim any right over the suit property and are bound by final adjudication of the said suit. It must be stated that the objection filed by them contending that decree is binding upon them is also rejected by the learned executing Court and appeal preferred against the order passed by the executing Court is also dismissed. It will be pertinent to state that although the suit was filed for injunction, issue of tenancy was framed in the suit and upon reference being made, the issue of tenancy is finally decided in favor of the tenant, predecessor of respondent nos.1 to 7. Having regard to such long drawn litigation contested by the tenant and that too before different forums and also having regard to beneficial nature of legislation, it will not be appropriate to dismiss the claim to purchase the property which is a valuable statutory right vested with respondent nos.1 to 7 on the ground of delay. It must also be stated that rejecting the proceeding on the ground of delay is a matter of equity. In the present case, equities are heavily loaded in favor of the respondent nos.1 to 7 who are descendants of the tenant. The tenant was sought to be forcibly dispossessed. He was therefore required to instituted suit for injunction. Reference to issue of tenancy is made in the suit which is answered in favor of tenant. While the suit was pending, the landlord sold the property to the petitioners without following the mandate of Section 48. The petitioners/purchasers also embroiled the respondent nos.1 to 7 into further litigation by raising frivolous objection in execution petition. The respondent nos.1 to 7 cannot be disentitled of their statutory right to purchase the property under Section 48 of the Tenancy Act merely on the ground of delay, particularly when the statute does not prescribe any limitation for exercising the said right.
26. The contention of Mr. Bhandari that the petitioners are in possession of the suit property also cannot be accepted in view of express decree in favor of predecessor of respondent nos.1 to 7. Mr. Bhandari contends that the petitioners were placed in possession of the suit property through a receiver appointed by the learned Civil Court in regular civil suit. However, as is rightly observed by learned MRT, order appointing possession of receiver is always in capacity of agent of the Court and not in any independent right. Apart from this, the said order operates only till culmination of lis. It must be stated that the provision for appointment of receiver is incorporated in Part IV of Code of Civil Procedure which deals with the supplementary proceedings. Learned MRT has rightly dealt with the legal position by rejecting the contention of the petitioners with respect to possession over the suit property.
27. In light of reasons recorded above, no case for interference is made out. The writ petition is therefore liable to be dismissed and it is dismissed accordingly with no order as to costs.
28. At this stage, Mr. Bhandari, learned advocate for the petitioners states that while dismissing the revision application, learned MRT had granted stay to its judgment till 13.11.2017. Learned advocate draws attention to order dated 13.11-2017 passed in present petition whereby the sale order passed by learned MRT was continued till next date of hearing. He draws attention of this Court to various orders by which interim relief came to be continued. Interim order dated 13.11.2017 is in operation till date. Learned advocate for the petitioners makes a request that said interim order be extended for a reasonable period in order to enable the petitioners to approach the Hon'ble Supreme Court.
29. Although the said request is strongly opposed, having regard to the fact that interim order is operating for a period of around 8 years and 9 months, the same is extended up to 30.11.2026.
30. Rule is discharged.
31. Pending civil applications stand disposed of.
