‘Protected Tenant’s Rights Heritable by Law’: Bombay High Court Sets Aside Orders, Cites Non-Compliance with Section 38-E(3)
Kiran Raj
A Single Bench of the Bombay High Court at Aurangabad, Justice Manjusha Deshpande, allowed a writ petition by the legal heirs of a protected tenant, setting aside prior orders that nullified a protected tenancy declaration. The Court quashed the Maharashtra Revenue Tribunal’s decision in Revision Application No. 2-B-2008-Hingoli and two appellate orders of the Deputy Collector (Land Reforms), Parbhani, while restoring the Tahsildar Kalamnuri’s directive dated 20 February 1986, which returned possession to the petitioners.
The bench recorded that the protected tenancy status of the petitioner’s predecessor remained intact as the respondents lacked the locus standi to challenge the declaration, and the statutory mechanism to extinguish protected tenancy rights was not followed.
The petitioners, being legal heirs of Mehboob Khan Rehman Khan, approached the Court assailing the judgment dated 25 July 2013 of the MRT, which had confirmed the Deputy Collector’s cancellation of protected tenancy rights over 17A-34G of agricultural land located in Sy. No. 32, Gat No. 91 at village Ambheri, Tq. Kalamnuri, District Hingoli. The Deputy Collector’s order stemmed from two appeals filed under Sections 38-E(1) and 38-E(i) Explanation of the Hyderabad Tenancy & Agricultural Lands Act, 1950 (the Act of 1950) by Mohammad Yusuf Gulam Rasool.
Advocate Mr. A.G. Dalal for the petitioners contended that Mehboob Khan Rehman Khan was a declared protected tenant as of 18 August 1962, as per the order of the Naib Tahsildar, Kalamnuri. However, after the father’s demise, the land was taken under government supervision, and later possession was handed over on an Eksala Lavni (year-to-year lease) basis to Abdul Karim Gulam Rasool. The petitioners sought restoration of possession in 1986, which was initially granted by the Tahsildar.
Mr. Dalal argued that the Deputy Collector erroneously relied on Section 38(6)(d) of the Act of 1950 to cancel the tenancy declaration, stating that the legal framework mandates further recovery proceedings as arrears of land revenue before tenancy rights can be rendered ineffective.
It was submitted that neither the Deputy Collector nor the MRT took into account that the respondents did not possess ownership or tenancy rights over the land but merely held possession based on the Eksala Lavni arrangement, subject to a written undertaking to surrender possession to the protected tenant’s heirs upon demand.
The intervenors, represented by Advocate Mr. P.S. Agrawal, contended that Mehboob Khan Rehman Khan had effectively surrendered his tenancy rights by refusing possession in 1962. The intervenors claimed that the petitioner’s late application in 1986, and the further proceedings, were barred by delay and latches. They further asserted that they had purchased the land through a registered sale deed dated 20 July 2011 and argued that their interests would be prejudiced by any revival of the petitioner’s rights.
Justice Deshpande recorded that the MRT and Deputy Collector erred in applying Section 38(6)(d) of the Act to protected tenants. The Court held that “Section 38-E(3) governs protected tenants exclusively, requiring both a default in payment and unsuccessful recovery proceedings to declare the protected tenancy purchase ineffective.” It was observed that “no material on record indicates that steps were taken by the authorities to recover the unpaid amount as arrears of land revenue, as mandated by the first proviso to Section 38-E(3).”
The Court cited the precedent in Ganpat Sakharam Deshmukh v. Yeshwant Digambar Deshmukh [2000(1) Mh. L. J. 126] to reiterate that two cumulative conditions must be met: (i) default in payment, and (ii) inability to recover the outstanding amount as arrears of land revenue. The Court stated, “These steps are to be taken chronologically and in continuity,” and remarked that “mere non-payment does not ipso facto render the protected tenancy ineffective.”
The Court further observed that “Section 40 of the Act of 1950 provides that tenancy rights are heritable, and protected tenancy created by law cannot be extinguished by refusal to accept possession unless surrendered under the procedure laid down in Section 19.” Referring to the Supreme Court’s decision in Ramchandra Keshav Adke (Dead) by Lrs v. Govind Joti Chavare [(1973) 1 SCC 559], the Court underscored the mandatory requirements for valid surrender, which includes written surrender verified by the Tahsildar with recorded satisfaction as to its voluntariness. The Court remarked that “in the present case, such mandatory compliance was absent.”
The bench noted that the Deputy Collector disregarded the legal fiction under Section 38-E that automatically vests ownership in the protected tenant, subject only to the provisos contained in Section 38-E(3). The Court recorded, “The MRT failed to apply the correct statutory interpretation and confirmed an order that was passed without jurisdiction, as the appeal challenging the protected tenancy declaration itself was not maintainable under Section 90 of the Act of 1950.”
Allowing the writ petition, the Court ordered, “The order dated 25.07.2013 passed by the Member, Maharashtra Revenue Tribunal, Aurangabad, in Revision Application No. 2-B-2008-Hingoli, thereby confirming the order passed by Deputy Collector (Land Reforms), Parbhani, in Appeals filed by the respondents... stands quashed and set aside.”
The Court further directed, “The order dated 20.02.1986 passed in File No. LR/A3/204/38E(1) by the Tahsildar, Kalamnuri is hereby confirmed.”
The writ petition was disposed of, with the Court noting that no costs were imposed.
Advocates Representing the Parties
For the Petitioner: Mr. A. G. Dalal
For the Respondents Ms. A. S. Mantri (AGP), Mr. P. D. Suryawanshi, Mr. P. S. Shinde, Mr. P. S. Agrawal
Case Title: Maheboobkha S/o. Rahemankha (Died) Through LRs & Others v. State of Maharashtra & Others
Neutral Citation: 2025:BHC-AUG:7950
Case Number: Writ Petition No. 3102 of 2014
Bench: Justice Manjusha Deshpande
[Read/Download order]
