Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors. - Court Judgment

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
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			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
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		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
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			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
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			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1988(4)BomCR545',
		'ratiodecidendi' => '',
		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
		'link' => null,
		'circuit' => null
	)
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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
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		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
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		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
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			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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H.W. Dhabe, J.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1988(4)BomCR545',
			'ratiodecidendi' => '',
			'respondent' => 'State of Maharashtra and ors.',
			'sub' => 'Property',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1988(4)BomCR545',
		'ratiodecidendi' => '',
		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
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2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1988(4)BomCR545',
		'ratiodecidendi' => '',
		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
			'sub' => 'Property',
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			'circuit' => null
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '1988(4)BomCR545',
		'ratiodecidendi' => '',
		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and

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			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1988(4)BomCR545',
			'ratiodecidendi' => '',
			'respondent' => 'State of Maharashtra and ors.',
			'sub' => 'Property',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'mohammad-ismailkhan-mohd-yenuskhan-vs-state-maharashtra',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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		'circuit' => null
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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$content = array(
	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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		'circuit' => null
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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7. For ready reference, section (19)(b) is reproduced below :

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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Section 19. 'Where during an enquiry...................................it appears that---

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1988(4)BomCR545',
			'ratiodecidendi' => '',
			'respondent' => 'State of Maharashtra and ors.',
			'sub' => 'Property',
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			'circuit' => null
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '1988(4)BomCR545',
		'ratiodecidendi' => '',
		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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		'circuit' => null
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
			'sub' => 'Property',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
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(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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$content = array(
	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
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			'pubs' => '1988(4)BomCR545',
			'ratiodecidendi' => '',
			'respondent' => 'State of Maharashtra and ors.',
			'sub' => 'Property',
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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	'Judgement' => array(
		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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$content = array(
	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1988(4)BomCR545',
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			'respondent' => 'State of Maharashtra and ors.',
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		'id' => '359320',
		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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		'pubs' => '1988(4)BomCR545',
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		'respondent' => 'State of Maharashtra and ors.',
		'sub' => 'Property',
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	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
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11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.

12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.

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	'title_for_layout' => 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '359320',
			'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
			'appealno' => 'Writ Petition No. 758 of 1986',
			'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
			'authreffered' => '',
			'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
			'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
			'caseanalysis' => null,
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			'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
			'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
			'court' => 'Mumbai',
			'court_type' => 'HC',
			'decidedon' => '1988-02-18',
			'deposition' => 'Writ petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'H.W. Dhabe, J.',
			'judgement' => '<p style="text-align: justify;">H.W. Dhabe, J.</p><p style="text-align: justify;">1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p style="text-align: justify;">2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p style="text-align: justify;">3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p style="text-align: justify;">4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p style="text-align: justify;">5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p style="text-align: justify;">6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p style="text-align: justify;">(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p style="text-align: justify;">(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p style="text-align: justify;">It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p style="text-align: justify;">7. For ready reference, section (19)(b) is reproduced below :</p><p style="text-align: justify;">Section 19. 'Where during an enquiry...................................it appears that---</p><p style="text-align: justify;">(a) ... ... ... ...</p><p style="text-align: justify;">(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p style="text-align: justify;">It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p style="text-align: justify;">8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p style="text-align: justify;">9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p style="text-align: justify;">10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p style="text-align: justify;">11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p style="text-align: justify;">12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Mohammad Ismailkhan Mohd Yenuskhan Vs State of Maharashtra and ors - Citation 359320 - Court Judgment | '
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		'acts' => 'Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 36(2), 38(1), 46(1), 49A(1) and 49A(3)',
		'appealno' => 'Writ Petition No. 758 of 1986',
		'appellant' => 'Mohammad Ismailkhan Mohd. Yenuskhan',
		'authreffered' => '',
		'casename' => 'Mohammad Ismailkhan Mohd. Yenuskhan Vs. State of Maharashtra and ors.',
		'casenote' => ' - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of the Code. The provisions of Section 41 of the Code provides for arrest by a Police Officer without an order from a Magistrate and without a warrant. A distinct and different power under Section 44 of the Code empowers the Magistrate to arrest or order any person to arrest the offender. Under Section 44 of the Code, that power is vested in the Court of the Magistrate when an offence is committed in his presence. If the Legislature has taken care of providing such specific power under Section 44 of the Code, then there could be no reason for such a power not to be specified under the provisions of Chapter XII of the Code. In terms of Section 41, a police officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of Section 156(3) of the Code, any restriction should be read into the power specifically granted by the legislature to the Police Officer. Of course, freedom  of investigation is the essence of these provisions but  in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. Some kind of inbuilt safeguard is available to the accused in the cases where the Magistrate directs investigation under Section 156 (3) of the Code by taking recourse to the provisions of Section 438 of the Code by approaching the Court of Session or the High Court for such relief. Thus, during the course of investigation of a criminal case, an accused is not  remediless and that would further buttress the above view. [Jagannath Singh v Dr. Ajay Upadyay & anr 2006 Cri LJ 4274; 2006 (5) AIR Bom R held per incuriam]. -  the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case.',
		'caseanalysis' => null,
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		'counselplain' => 'S.R. Deshpande and ; P.G. Palshikar, Advs.',
		'counseldef' => 'V.V. Naik, A.G.P. for  respondent No. 1, ; V.S. Sohoni, Adv. for respondents 2 to 4',
		'court' => 'Mumbai',
		'court_type' => 'HC',
		'decidedon' => '1988-02-18',
		'deposition' => 'Writ petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'H.W. Dhabe, J.',
		'judgement' => '<p>H.W. Dhabe, J.</p><p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.</p><p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.</p><p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.</p><p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.</p><p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. </p><p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :</p><p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and </p><p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).</p><p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.</p><p>7. For ready reference, section (19)(b) is reproduced below :</p><p>Section 19. 'Where during an enquiry...................................it appears that---</p><p>(a) ... ... ... ...</p><p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'</p><p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus</p><p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.</p><p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.</p><p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.</p><p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p></p><p>',
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$content = array(
	(int) 0 => '<p>H.W. Dhabe, J.',
	(int) 1 => '<p>1. This is a writ petition arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, 'the Ceiling Act'). On a return being filed by the petitioner under section 12 of the Ceiling Act, a ceiling case was opened in his case. The field survey No 1/1, area 18 acres 11 gunthas of village Bramhi (Bk) was held by him as a tenant. The petitioner submitted before the Surplus Lands Determination Tribunal (for short, 'the S.L.D.T.' that he had lost possession of the said field in the tenancy proceedings for resumption of land, initiated by the respondents 2 to 4 landlords. It is, however, not clear from the order of the learned S.L.D.T. whether the said field was included in the total holding of the petitioner or not. But, since the S.L.D.T. has ultimately held that there is no surplus land belonging to the petitioner it would appear that this field survey No. 1/1 is excluded by it from the total holding of the petitioner.',
	(int) 2 => '<p>2. The respondents 2 to 4, who as already pointed out, are the landlords of the aforesaid field, filed a revision under section 45(2) of the Ceiling Act claiming that there should be an enquiry in respect of the field Survey No. 1/1 as required by the section 19 of the Ceiling Act and that part of the land which the landlords are entitled to resume from the field Survey No. 1/1 should be restored to them. The learned Additional Commissioner by his order dated 24-1-1986 allowed the aforesaid revision, because by a separate order passed in suo motu revision in the ceiling case of the petitioner the learned Additional Commissioner had disallowed the oral gifts and had directed fresh enquiry to be made in respect of the surplus land belonging to the petitioner. Feeling aggrieved by the aforesaid order of the learned Additional Commissioner directing enquiry to be made under section 19 of the Ceiling Act in respect of the field survey No. 1/1, the petitioner has preferred the instant writ petition in this Court.',
	(int) 3 => '<p>3. Before I proceed to consider the contentions urged in this writ petition, I may state that the order in suo motu revision passed by the learned Additional Commissioner on 24.1.1986 disallowing the oral gifts and directing the learned S.L.D.T. to make fresh computation of the surplus land belonging to the petitioner was challenged in Writ Petition No. 732 of 1986. By the judgment delivered by me in that writ petition on 17-2-1988. I have held that after remand the learned S.L.D.T. should make a fresh enquiry on the question whether the alleged oral gifts are followed by possession prior to 26.9.1970 for being valid gifts under the Mohammedan Law made prior to the said date so that the lands there under can be excluded from the total holding of the petitioner. Thus the scope of remand before the learned S.L.D.T. is enlarged by my aforesaid judgment. The judgment which is delivered in the instant writ petition is also concerned with the enquiry to be made by the learned S.L.D.T. in respect of the ceiling case of the petitioner. The finding and/or observations made in this judgment, therefore, should also be taken into consideration by the learned S.L.D.T.. in deciding the ceiling case of the petitioner.',
	(int) 4 => '<p>4. In appreciating the submissions made in the instant writ petition it is necessary to state that the petitioner claimed that he was a tenant of the field survey No. 1/1 since 1951-52 from the predecessor-in-title of the respondents 2 to 4, viz. Aziz Begum, the mother of the respondents 2 and 3. The said landlady had filed a case against the petitioner for resumption of the suit field under section 38(1) read with section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, 'the Tenancy Act'), registered as Case No. 36/59/60-61 decided on 28-8-1961. However, the said application for resumption of land was dismissed by the aforesaid order which was finally affirmed by the MRT also by its order dated 28-6-1962. It is thereafter that the landlady Aziz Begum died on 21-12-1970. After her death the respondents 2 to 4, who were her legal heirs, again commenced the proceedings for resumption of land in 1977 under section 36(2) read with section 38(1) and section 39-A of the Tenancy Act. The petitioner had also started proceedings for determination of purchase price of the suit field on the ground that he had become a statutory owner of the said field under section 46 or under section 49-A of the Tenancy Act.',
	(int) 5 => '<p>5. The Additional Tahsildar dismissed the application for resumption of land filed by the respondents 2 to 4 but allowed the application of the petitioner for fixation of purchase price on the ground that he had become the statutory owner of the suit field. The respondents 2 to 4 challenged the aforesaid orders of the Additional Tahsildar in appeal and in appeal the learned Sub-Divisional Officer set aside the said orders. The petitioner preferred two revisions against the orders of the learned S.D.O. and the learned MRT allowed the revisions preferred by the petitioner by setting aside the orders passed by the learned S.D.O. and restoring the orders passed by the learned Additional Tahsildar. The respondents 2 to 4 challenged the aforesaid orders of the learned M.R.T. by preferring two writ petitions registered as Writ Petition No. 2585 of 1980 and Writ Petition No. 2586 of 1980 in this Court. However, this Court by its order dated 6-9-1984 passed in the aforesaid writ petitions maintained the orders of the learned M.R.T. in these cases by dismissing the said writ petitions. There were two Letters patent Appeals filed against the orders of the learned Single Judge in the aforesaid writ petitions registered as Letters Patent Appeals No. 375 of 1984 and 376 of 1984 but the same were also dismissed on 11-10-1984. It is in the background of these facts and circumstances that the submissions made in the instant writ petition particularly on behalf of the respondents 2 to 4 need to be considered. I may state here that I have taken the above facts from the record of the aforesaid writ petitions and in particular the order of the learned M.R.T. impugned therein and the return filed by the respondents in the said writ petitions. ',
	(int) 6 => '<p>6. The learned Counsel for the respondents 2 to 4 has urged that in the case of the tenanted land the learned S.L.D.T. is bound to make an enquiry as provided in Clause (b) of section 19 of the Ceiling Act. In support of the interpretation of Clause (b) of section 19 of the Ceiling Act the learned Counsel for there respondents 2 to 4 has relied upon the following two decisions of this Court :',
	(int) 7 => '<p>(1) Puranbai v. State A.I.R. 1972 Bom. 194 (Division Bench) and ',
	(int) 8 => '<p>(2) Sushilabai v. State, : AIR1975Bom106 (Full Bench).',
	(int) 9 => '<p>It may be seen that the above judgments of this Court are construing Clause (b) of section 19 as it existed to enactment of the Maharashtra Act No. 21 of 1975. However, the only difference before and after the enactment of the Maharashtra Act No. 21 of 1975 is that the bracketed portion in Clause (b) of section 19 was not there in the said clause prior to its amendment by the aforesaid Amending Act.',
	(int) 10 => '<p>7. For ready reference, section (19)(b) is reproduced below :',
	(int) 11 => '<p>Section 19. 'Where during an enquiry...................................it appears that---',
	(int) 12 => '<p>(a) ... ... ... ...',
	(int) 13 => '<p>(b) the landlord has a right of resumption for personal cultivation in respect of that land (or part of thereof) under the relevant tenancy law applicable to such land the Collector shall (unless that right is subject to proceedings instituted before the 26th day of September, 1970 before any Court, Tribunal or other authority and pending at the time of such inquiry), notwithstanding anything contained in that tenancy law (but without prejudice to any right to resume land which is not delimited as surplus land), restore possession to the landlord of so much only of the surplus land, as he is entitled to resume, and which together with any other land held by him or as the case may be, the family unit shall not exceed the ceiling area under this Act. The balance, if any, shall then be declared as surplus land.'',
	(int) 14 => '<p>It is provided in Clause (b) of section 19 reproduced above that if the landlord has a right of resumption for personal cultivation in respect of the land which is delimited as surplus then he is entitled to resumption or possession of so much of the surplus land as he is entitled to resume and which together with any other land held by him, or, as the case may be the family unit, shall not exceed the ceiling area under the Ceiling Act. The above right is without prejudice to the right of the landlord to resume the land which is not declared as surplus',
	(int) 15 => '<p>8. The principal submission urged on behalf of the respondents 2 to 4 is that notwithstanding the orders passed in the aforesaid tenancy cases the S.L.D.T. is bound to make an enquiry of its own under Clause (b) of section 19 of the Ceiling Act. The submission is that the learned S.L.D.T. must find out how much land the landlord is entitled to resume from the suit filed and direct its restoration to him despite the orders of the competent tenancy authorities under the Tenancy Act.',
	(int) 16 => '<p>9. In appreciating the above submission made on behalf of the respondents 2 to 4 it is necessary to notice that the entitlement of the landlord to resume the land for personal cultivation has to be judged on the basis of the relevant tenancy law applicable to him. That is made amply clear by Clause (b) of section 19 itself. This is also the view which is taken by this Court in the above judgments of this Court relied upon on behalf of the respondents 2 to 4 themselves. The question, therefore, to be considered is whether the respondents 2 to 4 have a right of resumption of land for personal cultivation in respect of the suit field under the Tenancy Act. It is from this point of view that the orders of the competent Court under the said Act are relevant. It is clear from the common order of the learned M.R.T. in revisions preferred by the petitioner before it passed on 30-7-1980 which order is affirmed by this Court in the aforesaid writ petitions, that the petitioner had long back become the statutory owner of the suit field section 46 or under section 49-A of the Tenancy Act when during the lifetime of the predecessor-in-title of the respondents 2 to 4 i.e. the landlady Aziz Begum, she had initiated the proceedings for resumption of land under section 38(1) read with section 36(2) of the Tenancy Act against the petitioner which were finally decided by the learned M.R.T. against her. According to the order of the learned M.R.T. which is annexed in the aforesaid writ petitions and also the Letters Patent Appeals there was no question of postponement of the right of statutory ownership till the expiry of one year after the death of the widow i.e. the landlady Aziz Begum because she had already preferred the proceedings for resumption of land for personal cultivation under section 38(1) read with section 36(2) of the Tenancy Act which were finally disposed of by the learned M.R.T. against her by its order dated 28-6-1962. The application filed by the respondents 2 to 4 for resumption of land in 1977 was, therefore, dismissed by the learned M.R.T.',
	(int) 17 => '<p>10. It may be seen that either under the second proviso to section 46(1) or the proviso to section 49-A(1) or section 49-A(3) of the Tenancy Act, it is only when the proceedings are not initiated by the landlord under the provisions referred to therein that the vesting of statutory ownership stands postponed in the case of the landlords of the disabled categories specified therein. However, if the proceedings are initiated by the landlord of the disabled category for possession of the land as per the provisions referred to therein which include proceedings under section 38(1) read with section 36(2) of the Tenancy Act, the tenant becomes the statutory owner of so much of the tenanted land which he is allowed to retain in possession finally.',
	(int) 18 => '<p>11. It is, therefore, clear that when the petitioner had already become the statutory owner as per the orders of the competent authorities under the Tenancy Act referred to above on final decision in the case for resumption of land filed by the landlady Aziz Begum, the respondents 2 to 4 had no right to resume the land under the Tenancy Act. The precondition for making an enquiry under Clause (b) of section 19, viz. the right of resumption of land under the relevant Tenancy Law is thus not satisfied in the instant case. As such the question of restoration of so much of the tenanted land to which the respondents 2 to 4 are entitled under the Tenancy Act does not arise for consideration in the instant case. The view taken by the learned Additional Commissioner that there is an occasion for enquiry under section 19 is not correct because, as pointed out above, the petitioner had become the statutory owner of the suit field under the Tenancy Act on 28-6-1962, the date of the decision of the learned M.R.T. in the case for resumption of land filed by the landlady Aziz Begum. Consequently it may also be stated that in the enquiry which is directed afresh as per the order passed by me in Writ Petition No. 732 of 1986 referred to above, the field Survey No. 1/1 can be and should be included in the total holding of the petitioner in determining his surplus land.<p>12. In the result, the instant writ petition is allowed. The impugned order of the learned Additional Commissioner is set aside and the learned S.L.D.T. (or its successor) is directed to include field Survey No. 1/1, area 18 acres 11 gunthas in the total holding of the petitioner in determining the surplus land belonging to him. Rule made absolute in the above terms. No order as to costs.<p>',
	(int) 19 => '<p>'
)
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$i = (int) 19
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