Full Judgment Text
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CASE NO.:
Appeal (civil) 2337-2338 of 2000
PETITIONER:
Babu Vithu Gaikwad [Dead] by LRs
RESPONDENT:
Chintaman Sadashiv & Ors
DATE OF JUDGMENT: 16/05/2007
BENCH:
A.K. Mathur & Tarun Chatterjee
JUDGMENT:
J U D G M E N T
TARUN CHATTERJEE, J.
1. These appeals are preferred against the final order
1st October, 1997 and order dated 15th September, 1999 passed in
C.A.No.8320 of 1997 by a learned Single Judge of the High Court
of Judicature at Bombay in Writ Petition No.139 of 1984. By the
order dated 1st October 1997, the learned Single Judge of the High
Court dismissed the aforesaid writ petition in which the appellants
prayed for quashing a judgment and order of Maharasthra Revenue
Tribunal [in short MRT] dated 30th August, 1983 in Revision
Application No. MRT P 14 of 1981 by which the Tribunal had
confirmed the order passed by the Tehsildar in Tenancy Case
No.32 FG/54/78 dated 31st August, 1978. In the application under
Article 227 of the Constitution, a prayer was also made by the
appellants to restore the order passed by the Appellate Court in
Tenancy Appeal No.56 of 1979 dated 27th October, 1980.
2. The facts leading to the filing of these appeals in short may
be stated as follows:
3. Agriculture land ( for short "the aforesaid land") bearing
Survey No.175/1 admeasuring 2 acres and 11 gunthas situated at
Village Biwadi, Tal Purandhar, District Pune was owned by
Sadashiv Purandhare, father of the respondent No.1 Chintaman
Sadashiv. Babu Vithu Gaikwad whose heirs and legal
representatives are the appellants in this Court was the original
tenant in respect of the aforesaid land. A partition of the aforesaid
land was affected by the deceased father of the respondents by
which the disputed land was allotted to him. On the tillers day, i.e.,
1st April, 1957 the respondent No.1 was a minor. He attained
majority on 6th October, 1960. In compliance with Section 31 of the
Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter
called the ’Act’), the respondent No.1 issued notice to Babu
Vithu Gaikwad [since deceased] for termination of his tenancy in
respect of the aforesaid land. This termination notice was issued
within one year of attaining the age of majority. The landlord-
respondent No.1 had failed to take out proceedings under
Section 29 of the Act until he filed an application on 27th March,
1962. Since the application under Section 29 of the Act was time
barred, the proceedings taken out by the landlord-respondent No.1
were withdrawn on 5th September, 1964. After one year of such
withdrawal, Babu Vithu Gaikwad -the tenant- had filed an
application under Section 32F read with Section 32G of the Act on
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2nd August, 1965. In these proceedings, on 6th October, 1967, a
statement of the tenant was recorded that he was willing to
purchase the disputed land. The additional Tehsildar rejected the
application of the tenant by his order dated 28th January, 1973. The
tenant filed an appeal before the Sub Divisional Officer which was
allowed and the matter was remitted back to the Additional
Tehsildar for fresh disposal. After a month by his order dated
31st August, 1978, the Additional Tehsildar held that under
Section 32F the right of the tenant to purchase the aforesaid land
was forfeited and, hence, directed that proceedings could be
initiated under Section 32P of the Act. Aggrieved by this order, the
tenant preferred an appeal before the Additional Collector, Pune
and by an order dated 27th October, 1980 he allowed the appeal and
remanded the matter back to Additional Tehsildar for holding an
enquiry under Section 32G to 32R of the Act for fixing the price
for purchase in accordance with law. Being aggrieved, the
landlord-respondent No.1 filed a revision petition before the MRT,
Pune which was allowed by the tribunal by an order dated
30th August, 1983 and against this order the tenants had filed a writ
petition in the High Court of judicature at Bombay, which was
dismissed by the impugned order in respect of which special leave
petition was filed and leave was granted.
4. We have heard the learned counsel for the parties and
examined all the orders mentioned above and the materials on
record. Before considering whether the High Court was justified in
confirming the order of the tribunal, it would be appropriate to
refer to some of the relevant provisions of the Act which would be
required for consideration in order to dispose of the appeals.
"29. Procedure of taking possession:- (1) A tenant or an
agricultural labourer or artisan entitled to possession of any
land or dwelling house under any of the provisions of this
Act may apply in writing for possession to the Mamlatdar.
The application shall be made in such form as may be
prescribed and within a period of two years from the date on
which the right to obtain possession of the land or the
dwelling house is deemed to have accrued to the tenant,
agricultural labourer or artisan, as the case may be.
(2) Save as otherwise provided in sub-section (3A), no
landlord shall obtain possession of any land or dwelling
house held by a tenant except under an order of the
Mamlatdar. For obtaining such order he shall make an
application in the prescribed form and within a period of
two years from the date on which the right to obtain
possession of the land or the dwelling house, as the case
may be, is deemed to have accrued to him.
(3) On receipt of application under sub-section (1) or (2) the
Mamlatdar after holding an enquiry, pass such orders
thereon as he deems fit:
Provided that where an application under sub-section (2) is
made by a landlord in pursuance of the right conferred on
him under section 31, the Mamlatdar shall first decide, as
preliminary issues, whether the conditions specified in
clause (c) and (d) of Section 31A and sub-section (2) and (3)
of Section 31B are satisfied. If the Mamlatdar finds that any
of the said conditions is not satisfied, he shall reject the
application forthwith.
(3A) Where a landlord proceeds for termination of the
tenancy under sub-section (1) of Section 43-1B, then,
notwithstanding anything contained in this Act, the
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application for possession shall be made to the Collector,
who shall after holding an enquiry in the prescribed manner,
pass such orders thereon as he deems fit.
(4) Any person taking possession of any land or dwelling
house except in accordance with the provisions of sub-
section (1), (2) or as the case may be, (3A), shall be liable
for forfeiture of crops, if any, grown in the land in addition
to payment of costs as may be directed by the Mamlatdar or
by the Collector and also to the penalty prescribed in
section 81."
"31. Landlord’s right to terminate tenancy for personal
cultivation and nonagricultural purposes.- (1)
notwithstanding anything contained in section 14 and 30 but
subject to sections 31A to 31D (both inclusive), a landlord
(not being a landlord within the meaning of Chapter III-AA)
may, after giving notice and making an application for
possession as provided in sub-section (2), terminate the
tenancy of any land (except a permanent tenancy), if the
landlord bona fide requires the land for any of the following
purposes:-
i) cultivating personally, or
ii) for non-agricultural purposes.
(2) The notice required to be given under sub-section (1)
shall be in writing, shall state the purpose for which the
landlord requires the land and shall be served on the tenant
on or before 31st day of December 1956. A copy of such
notice shall, at the same time, be sent to the Mamlatdar. An
application for possession under Section 29 shall be made to
the Mamlatdar on or before 31st day of March 1957.
(3) Where landlord is a minor, or a widow, or a person
subject to mental or physical disabilities then such notice
may be given and an application for possession under
section 29 may be made,
i) by the minor within one year from which he
attains majority;
ii) by the successor-in-title of a widow within one
year from the date on which her interest in the land
ceases to exist;
iii) within one year from the date on which mental
or physical disability ceases to exist; and
Provided that where a person of such category is a member
of a joint family, the provisions of this sub-section shall not
apply if at least one member of the joint family is outside
the categories mentioned in this sub-section unless before
the 31st day of March 1958 the share of such person in the
joint family has been separated by metes and bounds and the
Mamlatdar on enquiry is satisfied that the share of such
person in the land is separated, having regards to the area,
assessment, classification and value of land, in the same
proportion as the share of that person in the entire joint
family property, and not in a larger proportion."
"32F. Right of tenant to purchase where landlord is minor,
etc.- (1) notwithstanding anything contained in the preceding
sections,-
a) where the landlord is a minor, or a widow, or a
person subject to any mental or physical disability the
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tenant shall have the right to purchase such land
under section 32 within one year from the expiry of
the period during which such landlord is entitled to
terminate the tenancy under Section 31 and for
enabling the tenant to exercise the right of purchase,
the landlord shall send an intimation to the tenant of
the fact that he has attained majority, before the
expiry of the period during which such landlord is
entitled to terminate the tenancy under section 31:
Provided that where a person of such category is a
member of a joint family, the provisions of this sub-
section shall not apply if at least one member of the
family is outside the categories mentioned in this sub-
section unless before the 31st day of March 1958, the
share of such person in the joint family has been
separated by metes and bounds and the Mamlatdar on
enquiry is satisfied that the share of such person in the
land is separated, having regards to the area, assessment,
classification and value of land, in the same proportion
as the share of that person in the entire joint family
property, and not in a larger proportion.
b) Where the tenant is a minor, or a widow or a person
subject to any mental or physical disability or serving
member of the armed forces, then subject to the
provisions of clause (a), the right to purchase land under
section 32 may be exercised-
i) by the minor within one year from which he
attains majority;
ii) by the successor-in-title of a widow within one
year from the date on which her interest in the land
ceases to exist;
iii) within one year from the date on which mental
or physical disability ceases to exist; and
iv) within one year from the date on which the
tenant ceases to be a serving member of the armed
forces:
Provided that where a person of such category is a member
of a joint family the provisions of this sub-section shall not
apply if at least one member of the family is outside the
categories mentioned in this sub-section unless before the
31st day of March 1958, the share of such person in the joint
family has been separated by metes and bounds and the
Mamlatdar on enquiry is satisfied that the share of such
person in the land is separated, having regards to the area,
assessment, classification and value of land, in the same
proportion as the share of that person in the entire joint
family property, and not in a larger proportion.
(1A) A tenant desirous of exercising the right conferred on
him under sub-section (1) shall give an intimation in that
behalf to the landlord and the Tribunal in the prescribed
manner within the period specified in that sub-section:
Provided that if a tenant holding land from a landlord (who
was a minor and has attained majority before the
commencement of the Tenancy and Agricultural Land Laws
(amendment) Act, 1969) has not given intimation as
required by this sub-section but being in possession of the
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land on such commencement is desirous of exercising the
right conferred upon him under sub-section (1), he may give
such intimation within a period of two years from the
commencement of that Act.
(2) The provisions of Section 32 to 32E (both inclusive) and
section 32G to 32R (both inclusive) shall, so far as may be
applicable, apply to such purchase."
5. At this stage, we may also note that the order of the High
Court dated 1st October, 1997 was sought to be reviewed by the
appellants which by the order darted 15th September 1999 was also
rejected. We may mention here that since the appellants have
challenged the final order along with the order passed in the review
petition it would not be necessary for us to deal with the question
whether the High Court was justified in rejecting the review
application. Let us, therefore, confine ourselves to the order of the
High Court by which the petition under Article 227 of the
Constitution was rejected.
6. On behalf of the appellants it was submitted that the tenant
had shown his willingness to purchase the aforesaid land in the
proceedings before the trial authorutyunder Section 32G of the Act.
According to the learned counsel for the appellants the tribunal as
well the Tehsildar have misconstrued the provisions of Section 32
and 32F of the Act and therefore the order passed by the High
Court and the Maharashtra Revenue Tribunal deserve to be set
aside and the order passed in Appeal No. 56 of 1979 dated
27th October 1980 must be restored.
7. Before the Additional Tehsildar, the question that was raised
by the parties was about the partition affected between them. The
Tehsildar held that the tenant had in no uncertain terms accepted
Chintaman Sadashiv Purandhare as his landlord and paid rent to
him and received rent receipts from him and this conduct on the
part of the tenant must be construed to be a waiver. The Tehsildar
also held that after accepting Chintaman Sadashiv Purandhare as
his landlord and paid rent to him and received rent receipts from
him, it was not open to the tenant to say that Chintaman Sadashiv
Purandhare was not his landlord. On the above findings, the
Tehsildar held that the partition was valid and genuine and
Chintaman Sadashiv Purandhare was the landlord of the aforesaid
land.
8. After deciding the question of partition, the Tehsildar went
on to decide whether the tenant had complied with the provisions
regarding giving intimation within the period specified in
Section 32G of the Act. After considering the fact, that the landlord
was a minor on the tillers day, i.e., on 1st April, 1957 and,
therefore, the tenant could not become entitled to purchase the
aforesaid land as contemplated in Section 32F of the Act. The
Tehsildar also found from the record that the landlord had attained
majority on 6th October, 1960 and it was incumbent on the
part of the tenant to give intimation of purchase of the aforesaid
land by 6th October, 1962, in view of Section 32F of the Act.
According to the Tehsildar, the tenant had failed to comply with
the mandatory requirement as enjoined by Section 32F of the Act.
Accordingly, the application was rejected by the Tehsildar, inter
alia, on the findings that the partition was valid and genuine and
the tenant had forfeited the right of purchase conferred on him by
Section 32F of the Act and therefore directed that the purchase by
the tenant became ineffective. In appeal the order of the Tehsildar
was set aside and appeal filed against the said order was allowed
and the case was sent back to the Tehsildar for conducting an
enquiry under Section 32G for fixing the purchase price in
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accordance with law.
9. Feeling aggrieved and dissatisfied with the order of the
Appellate Authority, a revision was filed at the instance of the
present respondent which came to be registered as Revision
Application No. MRT-PIL 4/1981. However, the Revisional
Authority agreed with the findings of the Tehsildar to the extent
that the tenant had failed to exercise his right to purchase the land
as he did not give intimation as required under Section 32F (1)-A
of the Act. So far as the question of intimation as required under
Section 32G of the Act is concerned, the Revisional Authority
found that two things were necessary in order to show that the
statement of the tenant recorded in the proceedings under Section
32G of the Act amounted to an intimation. Accordingly, it was held
that there should be a statement of the tenant recorded in the
proceedings under Section 32G of the Act and such statement must
be recorded in the presence of the landlord. However, the
Revisional Authority found that the aforesaid two ingredients were
absent in the present case and, accordingly, provisions of
Section 32F of the Act regarding intimation to be given by the
tenant were not complied with. On the aforesaid findings, the
Revisional Authority came to the conclusion of fact that the tenant
had failed to exercise his right to purchase the land and, therefore,
the trial court, namely, the Tehsildar was perfectly justified in
holding that the proceedings under Section 32P of the Act should
be started. The revision application was thus allowed and the order
passed by the Appellate Authority was set aside and that of the
Tehsildar was restored.
10. Feeling aggrieved by this order of the Revisional Authority,
the appellants filed a writ petition before the High Court which
came to be registered as Writ Petition No.139 of 1984 and by the
impugned order the High Court dismissed the writ petition and held
that there was no error of jurisdiction nor was there any error
apparent on the face of the record and accordingly the order passed
by the Tehsildar and affirmed by the MRT was perfectly valid and
did not warrant any interference. Feeling aggrieved by this order of
the High Court, the appellants preferred special leave petition in
this court.
11. Before us, the following questions were raised for our
discussion by the Learned Counsel for the parties. The questions
raised before us for being decided may be listed as:
1. Whether the provisions of Section 32F(1A) of
Bombay Tenancy and Agricultural Land Act, 1948 become
inapplicable when a landlord applies for recovery of
possession under section 29 r/w Section 31 of the said Act?
2. Whether Section 29 read with Section 31 and Section
32F of the Act are mutually exclusive?
12. Since the aforesaid two questions are interrelated, let us
discuss the two issues together. As noted hereinabove, Section 29
deals with the procedure involved in taking possession by a
landlord, Section 31 talks about landlord’s right to terminate
tenancy for personal cultivation and nonagricultural purposes while
Section 32F pertains to right of tenant to purchase where landlord
is minor.
13. Section 29 and 31 if read together deal with the process
involved in a situation where the landlord wants to take possession
of his land from the tenant and his right to terminate the tenancy
for personal use. Section 32F on the contrary speaks about the right
of the tenant to purchase the land in case the landlord is a minor.
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Both the parts contradict each other in the sense that if the landlord
gets to exercise his right, the tenant cannot and vise versa. Thus, in
our view, it is only logical to conclude that when a landlord applies
for recovery of possession under section 29 read with Section 31 of
the Bombay Tenancy and Agricultural Land Act, 1948, the
provision of Section 32F(1A) of said Act become inapplicable,
thereby making them mutually exclusive to the extent that if one is
applicable, the other could not be evoked. That apart, it must be
borne in mind that an error on the part of the landlord does not
mean that the tenants’ rights under Section 32F are evoked
automatically.
14. However, considering the present case, it is important to
note that the Tribunal was of the view that the tenants had not
brought anything on record that showed that they had filed any
application in accordance with section 32F in order to purchase the
aforesaid land. It stated that the Appellate Authority had held them
to be deemed purchasers even though the intimations that were put
by the tenants were not in accordance with law. It is important to
mention here that Section 32G speaks about the power of the
Tribunal to issue notice and determine price of land to be paid by
the tenants. The tenants under this section have to show willingness
to purchase the land after which the Tribunal is duty bound to give
opportunity to the landlord and any other concerned party to be
heard before deciding the value of the land. In the present case, the
Tribunal was of the view that the second limb of the condition had
not been satisfied, i.e., the landlord’s statements were not brought
on record. This was the inconsistency in the process. Considering
this, we too are of the view that since the intimation was
inconsistent with law, the Appellate Authority erred in holding the
tenants as deemed purchasers. We, thereby, uphold the decision
given by the Tribunal and the Single Judge Bench of the High
Court of Bombay on this aspect.
15. Before we part with this judgment we find it appropriate to
discuss the cases mentioned in the application which were not
looked into by the High Court. The first case is that of
Harshavardhan Shrinivas Potnis v. Mahadu Pundalik Gangurde
(AIR 1980 Bombay198). In that case, the disputed property
belonged to one Girijabai, who was admittedly a widow and had
not exercised her right of resumption under Section 31 of the Act
till her death. Girijabai died on 4th June, 1965. By a will executed
by her, she bequeathed the two fields in question in favour of the
petitioner who was then minor having been born on13th June, 1956.
He attained majority on 13th June, 1976.
16. The High Court observed that the minor who succeeded to
the interest of a widow after 31st December 1956 was not a person
who was a landlord either on 31st December 1956 and he cannot
take advantage of the extension of the period provided for a minor
who was a landlord on 31st December, 1958. The period during
which the minor after having succeeded to the widow could have
terminated the tenancy of the tenant under Section 31 (3) was one
year from the time of her death. The intimation required to be
given under Section 32F (1A) by the tenant in order to exercise his
right of purchase should have been given within one year from the
expiry of the period of one year referred to in Section 31 (3). Thus
the period in the instant case, during which the tenant should have
served an intimation, was within two years from the death of the
widow. This case is however distinguishable from the one at hand
as this case deals with succession in case of death of a widow
whereas the one before us is specific to the rights of a minor as
becoming the landlord of the disputed property on attaining the age
of majority.
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17. The case of Amrit Bhikaji Kale and Ors. v. Kashinath
Janardhan Trade and Anr. [AIR 1983 SC 643] is also
distinguishable from the one before us. In that case, the disputed
property belonged to Tarachand Chopra. Janardhan, the father of
the respondent was admittedly the tenant of this land on
1st April, 1957. Section 32 of the Bombay Tenancy and
Agricultural Lands Act, 1948 as amended from time to time
provided that on the 1st April, 1957 styled as the tillers’ day every
tenant shall subject to other provisions of the section and the
provisions of the next succeeding sections be deemed to have
purchased from his landlord, free from all encumbrances subsisting
thereon on the same date the land held by him as a tenant if other
conditions of the section are satisfied. Thus by operation of law,
Janardhan, who was the tenant of the land on the tillers’ day
became the deemed purchaser thereof. Landlord Tarachand died on
August 12, 1959. Before his death, landlord Tarachand had
executed a will and bequeathed the suit land to Ashoklal Gugale
who got his name mutated in the revenue record in respect of the
suit land in his favour as owner. However, on the date of mutation,
Ashoklal was a minor.
18. The said Janardhan applied to the Tribunal for purchase of
the land and fixation of price of the same. The Tribunal went into
the records and held that Tarachand was the recorded landlord and
being under no disability and Janardhan being tenant of the land,
by operation of law, became deemed purchaser and all subsequent
proceedings were null, void and nonest. The Tribunal accordingly
determined the purchase price. The High Court upheld the said
decision.
19. The Supreme Court after going through the records was of
the following opinion:
"Janardhan was deprived of his possession by an
order which had no legal sanction. He was deprived
of possession on the footing that he was a tenant
ignoring and overlooking the statutory event that he
had become the owner Even when the Legislature
passed such a revolutionary measure its knowledge
was not transmitted to the persons for whose benefit
the measure was enacted and there was no awakening
to one’s right."
20. On examining the above mentioned case, we are of the
opinion that the case of Amrit Bhikaji Kale pertains to
determination of the question whether Janardhan was a deemed
purchaser or not. However, in the case before us, the rights of the
minor are not disputed. The question of the tenants becoming a
deemed purchaser does not arise in the present case as the land was
transferred in the name of the minor before the tiller’s day.
21. As per our discussions above, we, therefore, hold that when
a landlord applies for recovery of possession under Section 29 read
with Section 31 of the Bombay Tenancy and Agricultural Land
Act, 1948, the provision of Section 32F(1A) of said Act become
inapplicable, thereby making them mutually exclusive to the extent
that if one is applicable, the other could not be evoked.
22. For the reasons aforesaid, the answers to the question raised
as noted herein earlier are in the negative. Therefore, we dismiss
the appeal upholding the decision of the High Court of Bombay
and the MRT, with no orders as to costs.