Full Judgment Text
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CASE NO.:
Appeal (civil) 1809 of 1992
PETITIONER:
TATOBA BHAU SAVAGAVE (D) BY LRS. & ANR.
Vs.
RESPONDENT:
VASANTRAO DHINDIRAJ DESHPANDE & ORS.
DATE OF JUDGMENT: 05/10/2001
BENCH:
Syed Shah Mohammed Quadri & S.N. Phukan
JUDGMENT:
SYED SHAH MOHAMMED QUADRI, J.
This appeal by special leave is filed by the tenant against
the order of the High Court of Judicature at Bombay in Writ
Petition No.3205 of 1982 dated January 9/10, 1992.
The question that arises in this appeal is: whether in
calculating the ceiling area of the landlord for purposes of
clause (a) of sub-section (1) of Section 43-1B of the Bombay
Tenancy and Agricultural Lands Act, 1948, should any land
held by him outside the State of Maharashtra be computed?
By Maharashtra Act XXXIX of 1964 Chapter III-AA
was inserted in the Bombay Tenancy and Agricultural Lands
Act, 1948 (for short, the Act) and the words or serving
member of the armed forces were deleted from Section 32-F of
the Act. Chapter III-AA contains special provisions for
termination of tenancy by landlords who are or have been
serving members of the Armed Forces and for purchase of their
lands by tenants. Section 43-1B which is one of the main
provisions in that chapter confers a right on the landlord to
terminate the tenancy of any land and obtain possession from
the tenant thereof. We shall set out here sub-section (1) of
Section 43-1B :
43-1B.(1) Notwithstanding anything contained in
the foregoing provisions of this Act, but subject to
the provisions of this section, it shall be lawful to a
landlord at any time after the commencement of
the Tenancy and Agricultural Lands Laws
(Amendment) Act, 1964, to terminate the tenancy
of any land and obtain possession thereof, but --
(a) of so much of such land as will be sufficient
to make up the total land in his actual
possession equal to the ceiling area; and
(b) where the landlord is a member of a joint
family, only to the extent of his share in the
land (not exceeding the ceiling area) held by
the joint family, provided that, the
Mamlatdar on inquiry is satisfied that such
share has (regard being had to the area,
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assessment, classification and value of land),
been separated by metes and bounds in the
same proportion as his share in the entire
joint family property and not in a larger
proportion.
(2) to (4) *
From a perusal of sub-section (1) of Section 43-1B it is
noticeable that it overrides the provisions of Chapters I to III
but is subject to the provisions of that section. It enables a
landlord, at any time after the commencement of the said Act
XXXIX of 1964, to terminate the tenancy of any land and
obtain possession from the tenant thereof. This right is subject
to the following conditions :
(1) the landlord is entitled to take possession of so much
of such land only as will be sufficient to make up the
total land in his actual possession equal to the ceiling
area and where the landlord is a member of a joint
family, only to the extent of his share in the land (not
exceeding the ceiling area) held by the joint family;
(2) on enquiry the Mamlatdar has to be satisfied that such
share of the landlord has been separated by metes and
bounds in the same proportion as his share in the entire
joint family property and is not in a larger proportion. In
recording his satisfaction the Mamlatdar has to take into
account the area, assessment, classification and value of
the land.
Section 43-1A defines landlord for purposes of that
Chapter to mean a landlord (including a certificated landlord
within the meaning of Section 33A) who is or has ceased to be,
a serving member of the armed forces; and in relation to the
land of a landlord who is dead includes his widow, son, sons
son, unmarried daughter, father or mother.
A brief account of the facts may be helpful in hitting
upon a solution.
The first respondent (landlord) was a member of the
Armed Forces from 1941 to 1970. On February 27, 1965, he
filed Tenancy Case No.1 of 1968 before the Collector,
Kolhapur, under Section 43-1B for resumption of the land to
the extent of ½ share in Survey No.98 and 2/3rd share in Survey
No.99 held by the appellants as tenants. On September 22,
1970, the case was dismissed as not maintainable. The first
respondent carried the matter in revision before the Additional
Commissioner, Poona Division, Poona, who, by his order dated
November 30, 1974, opined that the partition of the joint family
took place in 1944, therefore, the case before the Collector was
maintainable and confined resumption of land to 1/3rd share in
Survey No.99. That order was affirmed in Special Civil
Application No.744 of 1975 by the High Court of Bombay on
July 3, 1979 and the case was remanded to the Collector for
recording findings in regard to the holdings of the first
respondent and the extent of the land he could resume from the
appellants. On April 6, 1981, after remand, in computing his
holding, the Collector declined to take into consideration the
land owned by the first respondent in the State of Karnataka,
the extent of that land is not beyond controversy, and concluded
that he was having in his actual possession 13 acres 12 gunthas
in the State of Maharashtra and he was entitled to resume
possession of 1/3rd share in Survey No.99 from the appellants
which would come 5 acres 27 gunthas; thus, his total holding
on resumption of the land from them under Section 43-1B
would become 18 acres 14 gunthas (though 13 acres 12 gunthas
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