Case Note & Summary
This writ petition under Article 226 of the Constitution of India (as inferred) was filed by two daughters of Narmadabai Totla challenging an order dated 5 February 2009 passed by the Tahsildar/Agricultural Lands Tribunal, Paithan in OW No.2008/Bhusudhar/Kavi. The Tribunal had granted an ownership certificate in respect of agricultural land bearing Gat No.1044 (Old Survey Nos.564 and 565), admeasuring 9 acres 16 gunthas, in favour of respondent Shankar Kanhuji Kothimbire under Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The land originally belonged to late Champalal s/o Jagannath; after his death, his wife Asrabai became the holder. The names of Vishwanath Kondaji and Kanhu Tukaram were recorded as protected tenants. After Kanhu Tukaram's death, Shankar (the deceased respondent) was entered as protected tenant in 1953 while still a minor. Asrabai executed a general power of attorney in favour of Badrinarayan Totla on 8 January 1979 and subsequently executed a registered gift deed dated 22 January 1979 in favour of Narmadabai, wife of Badrinarayan Totla. Narmadabai's name was mutated to the record of rights by Mutation Entry No.781. Narmadabai died on 29 December 2010. The petitioners are her daughters. The respondent Shankar initiated proceedings before the Agricultural Lands Tribunal for grant of ownership certificate under Section 38-E, which culminated in the impugned order dated 5 February 2009. The petitioners contended that no notice was issued to Asrabai or Narmadabai, no enquiry was conducted, and the land owners were not impleaded. They further contended that tenancy under the Hyderabad Tenancy Act, 1950 was not heritable after the amendment of Section 40 by Act No.32 of 1958, and therefore the deceased respondent was not entitled to inherit the protected tenancy. The original respondent died during pendency and his legal representatives were substituted. The main legal issues raised were: (i) whether protected tenancy under the Act is heritable; (ii) whether principles of natural justice required notice to the land owner before grant of ownership certificate; and (iii) whether the writ petition was maintainable in view of delay, laches and availability of alternative remedy under Section 90-B. The petitioners argued that the order was vitiated by breach of natural justice and legal error. The respondents raised objections regarding delay of about seven years, alternative remedy, and contended that Section 38-E proceedings did not require notice to the landlord. The court analysed the statutory scheme under Sections 5, 34, 35, 37-A, 38, 38A(1), 38-E and 38-F of the Hyderabad Tenancy and Agricultural Lands Act, 1950. It observed that the Act vests ownership in a protected tenant by legal fiction, and the issuance of certificate under Section 38-E is a formal declaration of ownership rather than an order in the strict sense. The court referred to the decision in Bharatlal Hemraj v. Kondiba Govinda Jadhav (2002 (Supp.1) Bom.C.R.216) where it was held that such certificate is merely affirmative expression of conferment of ownership and not a decision or order. The provided judgment text ends before the final operative decision. The court's reasoning suggests it was inclined to treat the certificate as non-appealable and focused on the formal nature of the proceedings, but no final directions are available.
Headnote
A) Tenancy Law - Heritability of Protected Tenancy - Section 40 of Hyderabad Tenancy and Agricultural Lands Act, 1950 as substituted by Act No.32 of 1958 - Petitioners contended that protected tenancy under the Act is not heritable after amendment; no final decision on this issue in available text - The court noted that ownership under Section 38-E vests by legal fiction from status of protected tenant but did not expressly rule on heritability in the provided portion - Held that certificate under Section 38-E is formal declaration of ownership by operation of law (Paras 6-12). B) Natural Justice - Notice to Landlord in Section 38-E Proceedings - Section 38-E of Hyderabad Tenancy and Agricultural Lands Act, 1950 - Petitioners alleged absence of notice to land owners and breach of audi alteram partem; respondents argued no notice required in such proceedings - The court observed that proceedings under Section 38-E are formal in nature and certificate is not an order strict sense, implying limited adjudicatory requirement - No final direction on notice requirement (Paras 6-7, 12). C) Writ Jurisdiction - Alternative Remedy and Delay - Section 90-B of Hyderabad Tenancy and Agricultural Lands Act, 1950 - Respondents raised maintainability objections based on seven-year delay and availability of revision before Collector - The court began examining tenability of petition by analysing nature of proceedings under Section 38-E but final decision not included in provided text (Paras 7-8, 10-12).
Issue of Consideration
Whether protected tenancy under Hyderabad Tenancy and Agricultural Lands Act, 1950 is heritable; whether proceedings under Section 38-E require notice to land owner; whether writ petition is maintainable despite delay and alternative remedy; nature of certificate under Section 38-E
Final Decision
The provided judgment text ends before the final operative decision. The court was analysing the nature of proceedings under Section 38-E and had observed that the certificate is a formal declaration of ownership by legal fiction, not an order in strict sense, and referred to Bharatlal Hemraj case.
Law Points
- ownership certificate
- protected tenant
- natural justice
- writ jurisdiction
- delay and laches
- alternative remedy
- legal fiction
- heritability of tenancy
