Full Judgment Text
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PETITIONER:
PATEL SURESHBHAI JASHBHAI
Vs.
RESPONDENT:
PATEL SATABHAI MATHURBHAI
DATE OF JUDGMENT28/04/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1983 SCR (2) 992 1983 SCC (3) 294
1983 SCALE (1)544
ACT:
Bombay Tenancy and Agricultural Lands Act, 1948-ss. 32,
32 G, 32 PP- Scope of-Tenant-Deemed Purchaser of land -
Failed to be present-Sale declared ineffective-Application
under section 32 PP for determination of price-Landlord
entitled to contend applicant not a tenant-Not precluded by
res-judicata,
HEADNOTE:
By the operation of s. 32 of the Bombay Tenancy and
Agricultural Lands Act 1948 the respondent who was recorded
as a tenant on the tillers’ day i e. 1st April, 1957 was
deemed to have purchased the land from the appellant-
landlord subject to other provisions of the Act. The
respondent having refused to accept notice u/s 32G for
determining the price of the land and failing to appear, the
Tribunal declared the sale ineffective. Subsequently the
respondent made an application under s. 32 PP that afforded
a fresh opportunity to a tenant who had failed to appear
before the Tribunal as a result of which the sale was held
ineffective, requesting the Tribunal to determine purchase
price of the land. The Tribunal held that the respondent was
not a tenant of the land and was not entitled to be declared
a deemed purchaser and accordingly it is not necessary to
determine the price The Deputy Collector dismissed the
appeal preferred by the respondent. The Revenue Tribunal in
a revision petition held that once the notice was issued to
a person who is shown to have purchased the land u/s 32 and
if the sale is held ineffective because of his absence in
the proceeding under s. 32G, in a subsequent proceeding u/s
32 PP it is not open to the landlord to challenge that such
a person was not tenant. A petition under Article 227 of the
Constitution moved by the appellant-landlord was dismissed
in limine by the High Court,
Dismissing the appeal,
^
HELD: The view of the Revenue Tribunal is not correct.
Section 32 PP confers a right upon a person claiming to be a
tenant to make an application for determining the price and
the pre-condition is that he failed to appear before the
Tribunal in a proceeding u/s 32G. In such a situation, the
landlord is a necessary party. The landlord can and would be
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entitled to contend that the person claiming to be a tenant
and making an application u/s 32 PP was not a tenant on
April 1, 1957. Undoubtedly only that person is entitled to
make an application u/s 32 PP who having failed to appear
before the Tribunal in a proceeding u/s 32G, the statutory
sale was declared ineffective but on that account such
person making an application under s. 32 PP must be accepted
as tenant without further enquiry and without permitting the
landlord to challenge the status of the applicant is not
warranted by the
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language of s. 32 PP. The Revenue Tribunal’s view that
unless the landlord challenged the order u/s 32G declaring
the sale having become ineffective on the footing that a
person to whom notice was sent was a tenant on April 1, 1957
and his failure to appear without anything more would clothe
him with the status of a tenant overlooks the possibility of
a person to whom notice is served not appearing because he
had nothing to do with the land.
[996 H, 997 A-H]
The failure of the landlord to question the sale being
declared ineffective on account of the absence of the person
to whom notice was sent and who defaulted would not either
on the general principle of res judicata or principle
analogous to constructive res judicata preclude the landlord
from challenging the status in the subsequent enquiry. There
is only one situation which may preclude the enquiry in that
if on receipt of notice the tenant did not appear and the
landlord appeared and unequivocally admitted that the
defaulting person was a tenant on the relevant date and on
his failure to appear the sale should be declared
ineffective, the landlord in subsequent proceeding under s.
32 PP would be estopped from challenging the status of the
applicant tenant. [998 A.C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1583 of
1970.
Appeal by special leave from the Judgment and order
dated the 22-12-1969 of the Gujarat High Court in S.C.A. No.
1630 of 1969.
V. A. Bobde and A. G. Ratnaparkhi for the Appellant.
R. B. Datar and Ms. Madhu Moolchandani for the
Respondent.
The Judgment of the Court was delivered by
DESAI J. Appellant Sureshbhai is the owner of land
bearing Survey No. 21 situated at Village ode, Taluka Anand,
District Kaira in Gujarat State. One Nathabhai Zaveribhai
and the present respondent were recorded as tenants on the
tillers’ day i.e. Ist April, 1957. Section 32 of the Bombay
Tenancy and Agricultural Lands Act, 1948 (’Tenancy Act for
short) provided that on the 1st day of April, 1957
(hereinafter referred to as the tillers’ day) every tenant
shall subject to the 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
tenant. Section 32G provided for the follow up action of the
compulsory purchase that ensues by the
994
operation of sec. 32. Section 32G thus envisages the
determination of the price in accordance with the various
provisions of the Act, of the land deemed to have been
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purchased by the tenant on the tillers’ day and the
methodology of its payment. In order to determine the price
the Agricultural Lands Tribunal (’Tribunal’ for short) has
to serve a notice in the prescribed manner to (a) all
tenants who u/s 32 are deemed to have purchased the lands
(b) all landlords of such lands; and (c) all other persons
interested therein to appear before it on the date specified
in the notice. Sub-sec. 2 provides that the Tribunal shall
record in the prescribed manner, the statement of the tenant
whether he is or is not willing to purchase the land held by
him as a tenant. Sub-sec. 3 provides that where tenant fails
to appear or makes a statement that he is not willing to
purchase the land, the Tribunal shall by an order in writing
declare that such a person is not willing to purchase the
land and that the purchase is ineffective. The remaining
sub-secs. provide the manner and method of determining the
price. The Tribunal having jurisdiction in the area in which
the land involved in the dispute is situated issued notice
to Nathabhai Zaveribhai and the present appellant as well as
the landlord of the land u/s 32G. It appears both the
tenants i.e. Nathabhai Zaveribhai and the present respondent
refused to accept notice to remain present and when summons
was served by substituted service both of them did not
remain present The Tribunal accordingly declared the sale
ineffective as provided by sec. 32G(3). The Tribunal
accordingly made its order annexure dated July 20, 1962
declaring that the sale is ineffective. Subsequently the
present respondent made an application u/s 32 PP requesting
the Tribunal to determine the price of the land deemed to
have been purchased by him being Survey No. 21 of Village
ode on April 1, 1957. It may be clarified that sec. 32-PP
was designed to give a further opportunity to the tenant who
had failed to appear before the Tribunal which led to the
sale being held ineffective, to purchase the land. This
application was resisted by the appellant-landlord The
Tribunal held that the present respondent was not a tenant
of the suit land and Nathabhai Zaveribhai was the only
tenant who has not made an application u/s 32 PP and
therefore the present respondent is not entitled to be
declared a deemed purchaser and accordingly it is not
necessary to determine the purchase price. The respondent
preferred an appeal to the Deputy Collector. This appeal was
dismissed by the Deputy Collector concurring with the
findings of the Tribunal. The respondent moved a revision
petition u/s 76
995
of the Tenancy Act in the Gujarat Revenue Tribunal. A
learned member of the Gujarat Revenue Tribunal held that
once the notice was issued to person who is shown to have
purchased the land u/s 32 and if the sale is held
ineffective because of his absence under sec. 32-G, in a
subsequent proceeding u/s 32 PP it is not open to the
landlord to challenge that such a person was not tenant.
Alternatively, on the merits it was held that the present
respondent was tenant of the land on April 1, 1957 and he
has become a deemed purchaser and the Tribunal was bound to
determine the price. The matter was accordingly remitted to
the Tribunal. Present appellant-landlord moved a petition
under Art. 227 in the High Court of Gujarat which was
dismissed in limine. Hence this appeal by special leave.
It is not in dispute that the notice u/s 32G was issued
to the present respondent and Nathabhai Zaveribhai with a
view to determining the price of land bearing Survey No. 21.
The notice was also served upon the appellant-landlord. In a
proceeding for determining the price, the necessary parties
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are the landlord and the tenant as the tenant becomes the
owner of the land by operation of law. A statutory duty is
cast on the Tribunal to proceed to determine the purchase
price. But as held by a Constitution Bench of this Court in
Sri Ram Ram Narain. Medhi v. The State of Bombay(1), that
"the title of the landlord to the land passes immediately to
the tenant on the tillers’ day and there is a completed
purchase or sale thereof as between the landlord and the
tenant. The title of the land which was vested originally in
the landlord passes to the tenant on the tillers’ day and
this title is defeasible only in the event of the tenant
failing to appear or making a statement that he is not
willing to purchase the land or commit default in payment of
the price thereto as determined by the Tribunal."
Thus, it is clear that the title passes by the
operation of law. The Tribunal has to determine the price as
envisaged by s. 32G. In order to effectively dispose of the
proceedings in the presence of the necessary parties, the
Tribunal is under an obligation to issue notice to the
landlord and the tenant. Order of the Tribunal dated July
20, 1962 shows that both the tenants and the landlord were
served. The order further shows that the tenants refused to
accept the notice and after substituted service did not
remain present. It
996
appears that the landlord remained present. The Tribunal
declared the sale ineffective on account of the absence of
the tenants. So far there is no dispute,
It appears that the Legislature became aware of the
fact that for want of legal literacy a sizeable number of
tenants did not appreciate the implication of such a
revolutionary measure and presumably under some influence of
the landlord and the local atmosphere, the tenants did not
appear before the Tribunal with the result that the
statutory sales were declared ineffective. The Legislature
took notice of this phenomenon defeating an agrarian reform
legislation and introduced sec. 32 PP by the Amending Act of
1965.
Sec. 32 PP was designed to give a further opportunity
to the tenant to purchase the land. The relevant portion of
sec. 32 PP reads as-under;
"s. 32 PP. Notwithstanding anything contained
in sections 32G and 32P, where before the date of
the coming into force of the Bombay Tenancy and
Agricultural Lands (Gujarat Amendment) Act, 1935
(hereinafter referred to in this section as "the
said date")-
(i) any land has been at the disposel of the
Collector under section 32P on account
of the purchase of the land by the
tenant thereof having become ineffective
under sub-section (3) of section 32G by
reason of the tenant failing to appear
before the Tribunal or making a
statement expressing his unwillingness
to purchase the land, and"
*
Pursuant to this fresh opportunity afforded by sec.
32PP respondent made an application requesting the Tribunal
to determine the purchase price. The Gujarat Revenue
Tribunal (Revenue Tribunal for short) held that the sale had
become ineffective under sub-sec. (3) of sec. 32G by reason
of the tenant failing to appear before the Revenue Tribunal
and therefore in an application under sec. 32PP the status
of the applicant being a tenant is no more open to debate or
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dispute and must be deemed to be concluded between the
parties. It is difficult to subscribe to this view. Sec.
32PP
997
confers a right upon a person claiming to be a tenant and
the precondition is that he having failed to appear before
the Tribunal in a proceeding u/s 32G, can make an
application for determining the price. In such a situation,
the landlord is a necessary party. The landlord can and
would be entitled to contend that the person claiming to be
a tenant and making an application u/s 32PP was not a tenant
on April 1, 1957. It is difficult to subscribe to the inter-
pretation of sec. 32PP adopted by the Tribunal. Undoubtedly
only that person is entitled to make an application u/s 32PP
who having failed to appear before the Tribunal in a
proceeding u/s 32G, the statutory saie was declared
ineffective but on that account such person making an
application under sec. 32PP must be accepted as tenant
without further enquiry and without permitting the landlord
to challenge the status of the applicant is not warranted by
the language of sec. 32PP. It is undoubtedly true that an
application u/s 32PP can be made where the purchase of the
land by the tenant has been declared ineffective u/s 32G(3)
by reason of the tenant failing to appear before the
Tribunal or making a statement expressing his unwillingness
to purchase the land. But it should not be overlooked that
where a notice was sent by the Tribunal u/s 32G to the
person to whom the Tribunal prima facie believed to be a
tenant and if such a tenant did not appear and the Tribunal
without anything more proceeded to declare the sale becoming
ineffective, the application u/s 32 PP would not preclude
the landlord from contesting the petition by showing that
the applicant was not a tenant on 1.4.57. In any proceeding
u/s 32G and 32PP the most important issue to be determined
is whether the person claiming to be a tenant was a tenant
on April 1, 1957 and an additional issue will have to be
determined in an application u/s 32PP whether to such a
person notice had been issued u/s 32G and on his failure to
appear the sale became ineffective. The Revenue Tribunal
appears to be of the view that unless the landlord
challenged the order u/s 32G declaring the sale having
become ineffective on the footing that a person to whom
notice was sent was a tenant on April 1, 1957 and is failure
to appear without anything more would clothe him with the
status of a tenant. This approach overlooks the possibility
of a person to whom notice is served, not appearing because
he had nothing to do with the land.
In such a situation an unadjudicated inferential
determination of status cannot preclude an inquiry into the
status which is a sine
998
qua non for claiming the right in a subsequent proceeding
between the parties. Therefore the failure of the landlord
to question the sale being declared ineffective on account
of the absence of the person to whom notice was sent and who
defaulted would not either on the general principle of res
judicata or principle analogous to constructive res judicata
preclude the landlord from challenging the status in the
subsequent enquiry. There is only one situation which may
preclude the enquiry in that if on receipt of notice the
tenant did not appear and the landlord appeared and
unequivocally admitted that the defaulting person was a
tenant on the relevant date and on his failure to appear the
sale should be declared ineffective, the landlord in
subsequent proceeding under sec. 32 PP would be estopped
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from challenging the status of the applicant tenant. Such is
not the case. Otherwise on a challenge by the landlord in a
proceeding under sec. 32 PP the Tribunal have to determine
the jurisdictional facts that (i) the applicant was a tenant
on April 1, 1957 and (ii) that the sale was declared
ineffective under sec. 35G. Therefore, the view of the
Tribunal that in a proceeding u/s 32PP, the status of the
applicant as a tenant is incontrovertible does not commend
to us and is not correct.
Mr. Bobde contended that once the view of the Tribunal
is not in consonance with law the only course open to us is
to remit the matter to the Tribunal. We are not inclined to
accept the submission for the obvious reason that there is
material on record that the respondent was a tenant on the
relevant date. Apart from a piece of circumstantial evidence
that a notice was sent to the respondent both by a
registered post and service was sought to be effected by
substituted service on the basis of tenancy record, his name
appears in the record of tenancy for certain years. Further
the landlord has not put on record his statement in the
proceeding u/s 32G whether he disputed the status. The
landlord did not take any step under sec. 15 after the sale
was declared ineffective. Nathabhai Zaverbhai who according
to the landlord was the only tenant of land was not examined
by the landlord. The cumulative effect of these
circumstances would affirmatively show that the respondent
was a tenant and if he was a tenant on the relevant date,
the Tribunal was right in directing that the purchase price
be determined.
This is the only point involved in this appeal. As we
find no merit in it, the appeal fails and is dismissed with
costs.
H.S.K. Appeal dismissed.
999