Case Note & Summary
The writ petition arose from a dispute over agricultural land bearing survey no. 101/5 at village Modhe Kh., Tq. Sillod, District Aurangabad. The petitioners, legal heirs of the original landowner Habibabi, sought to recover possession from the tenant-respondents under the Hyderabad Tenancy and Agricultural Lands Act, 1950. The landowner had initially filed an application under Sections 32(2) and 44 of the Act before the Additional Tahsildar, Sillod, alleging default in payment of rent and unauthorized subletting of the land to respondent No.6. By order dated 25 April 1989, the Additional Tahsildar allowed the application, directing delivery of possession to the landowner. The respondents' appeal to the Deputy Collector, Land Reforms, Aurangabad was dismissed on 27 September 1989, confirming the eviction. However, on further revision, the Maharashtra Revenue Tribunal, Aurangabad, by judgment dated 15 July 1991, allowed the revision and set aside the eviction, holding that the mandatory procedure under Section 28 of the Act for default in rent had not been followed and that there was no evidence of subletting. The landowner then filed this writ petition challenging the Tribunal's order. The core legal issues were whether the eviction based on default in rent could stand without compliance with Section 28's requirement of issuing a notice to the tenant to deposit arrears within ninety days, and whether there was adequate proof of subletting under Section 19(2)(d). The petitioners argued that the defaults were clear and that the tenants had admitted in their written statement that respondent No.6 was in possession, thus subletting stood proved. The respondents countered that no notice under Section 28 had been issued and that respondent No.6 was a family member, as shown by revenue records reflecting succession after the original tenant's death. The High Court examined the orders and the relevant provisions. It noted that Section 28(1) mandates that before eviction for non-payment of rent, the Tahsildar must call upon the tenant to tender arrears with costs within ninety days, and upon compliance, the tenancy is continued. The proviso excepts cases of default for three years with timely intimation. The Additional Tahsildar had not discussed these mandatory steps; the finding of default was thus legally unsustainable. Regarding subletting, the Court observed that the Tribunal, after perusing the 7/12 extracts, found that after the death of the original tenant Shenphad, his legal heirs including son Kishan, mother Reobai, and others were recorded in possession. No documentary evidence established that respondent No.6 was an unauthorized occupant or not a family member. The lower authorities' conclusion of subletting was based on an alleged admission without supporting records. The High Court held that the Tribunal's decision was not perverse and did not warrant interference. Consequently, the writ petition was dismissed and the rule discharged, with no order as to costs, upholding the tenants' right to continue in possession.
Headnote
A) Tenancy Law - Default in Rent - Mandatory Notice under Section 28 - Hyderabad Tenancy and Agricultural Lands Act, 1950, s.28 - The Additional Tahsildar ordered eviction on ground of default in payment of rent without issuing a notice to the tenant to deposit arrears within ninety days as required by Section 28(1). The High Court held that the mandatory procedure under Section 28 must be strictly followed; mere general observations of default are insufficient. Therefore, the finding of default was unsustainable. (Paras 11-12) B) Tenancy Law - Subletting - Proof of Possession by Alleged Sub-tenant - Hyderabad Tenancy and Agricultural Lands Act, 1950, s.19(2)(d) - The Additional Tahsildar and Deputy Collector had found subletting by the tenant family to Respondent No.6 based on an alleged admission in the written statement. However, the Tribunal examined the 7/12 extracts and found that after the death of the original tenant, his legal heirs were recorded in possession, indicating Respondent No.6 was a family member, not an outsider. The High Court held that the finding of subletting was without documentary evidence and could not be sustained. (Paras 13-14) C) Writ Jurisdiction - Scope of Interference - Perversity - The High Court, in exercise of its writ jurisdiction, declined to interfere with the order of the Tribunal as it was based on proper appreciation of the revenue record and was not perverse. The concurrent findings of the lower authorities were set aside because they did not follow mandatory legal procedures and lacked evidentiary support. (Paras 15-16)
Issue of Consideration
Whether the Additional Tahsildar's order granting possession on grounds of default in rent and subletting was valid without following mandatory procedure under Section 28 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 and without adequate proof of subletting
Final Decision
Writ petition dismissed; rule discharged; no costs. Upheld Tribunal's order that eviction invalid due to non-compliance with Section 28 and lack of proof of subletting.
Law Points
- Before taking action on ground of default in payment of rent
- Tahsildar must follow provisions of Section 28 of the Hyderabad Tenancy and Agricultural Lands Act
- 1950
- if default for three years only then entitled for recovery
- mandatory notice calling upon tenant to tender arrears within 90 days
- without adherence eviction invalid
- subletting under Section 19(2)(d) must be proved by documentary evidence
- admission alone insufficient if contradicted by revenue records showing legal heirs in possession
