Full Judgment Text
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CASE NO.:
Appeal (civil) 3128 of 2000
PETITIONER:
Sudam Ganpat Kutwal P.A. Holder of Shankar Sitaram Bhosle
RESPONDENT:
Shevantabai Tukaram Gulumkar (dead) by LR Maruti Shankar Pachpute
DATE OF JUDGMENT: 18/08/2006
BENCH:
Arijit Pasayat & R. V. Raveendran
JUDGMENT:
J U D G M E N T
RAVEENDRAN, J.
This appeal by special leave is against the order dated
9.7.1999 passed by the Bombay High Court rejecting W.P.
No.2599 of 1999 filed by the appellant. It is stated that ’Sudam
Ganpat Kutwal’ shown as appellant is the P.A. Holder of
Shankar Sitaram Bhosle, that he had filed W.P. No.2599/1999
as the Attorney holder of Shankar Sitaram Bhosle, that he filed
the SLP also as Attorney holder of Shankar Sitaram Bhosle, but
that has not been stated in the cause title due to oversight,
though he has specifically mentioned this fact in his rejoinder
affidavit filed on 26.4.2000. In view of it, the appellant is
permitted and directed to amend the cause title so as to describe
him as P.A. Holder of Shankar Sitaram Bhosle. In view of it,
the term appellant in this order would refer to Shankar Sitaram
Bhosle.
2. The appellant’s case in brief is as follows :
2.1) The appellant was inducted as the tenant of agricultural
land bearing Gat No.332 in village Jogwadi, Taluk Baramati,
District Pune, measuring 25 acres 9 Guntas, in the year 1954
and was cultivating the same personally.
2.2) Under section 32 of the Bombay Tenancy and
Agricultural Lands Act, 1948 (’Act’ for short), on the first day
of April, 1956 (referred to as ’tillers day’), every tenant was
deemed to have purchased the land held by him as tenant, from
his landlord, free from all encumbrances subsisting thereon, on
the conditions stated therein being fulfilled. The revenue
records show that though the appellant was registered as the
tenant of the said land on the tillers day, his right to purchase
under the deemed purchase was postponed as the landlord was a
widow.
2.3) The landlord (Anusuyabai Bhosle) filed an application
(Tenancy Application No. 3/1958) under Section 31 read with
Section 29 of the Act, seeking possession of the land in the
occupation of the Appellant tenant on the ground that she
required the land for her personal cultivation. The Tenancy
Awal Karkun, Baramati, accepted the claim of the landlord and
made an order dated 30.6.1960 directing that possession of half
of the land should be delivered to the landlord for her bona fide
personal cultivation and possession of the remaining half shall
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remain with the tenant. In pursuance of it, the appellant
delivered half of the land (the eastern portion) to Anusuyabai
and continued in possession of the remaining half portion. It is
alleged that Anusuyabai sold the land which she got for her
personal cultivation, to others under different sale deeds.
2.4) Anusuyabai thereafter filed Tenancy Case No.95/1964
before the Mamlatdar, Baramati, seeking possession of the
remaining half of the land on the ground that the appellant had
committed certain defaults. The Mamlatdar rejected the said
petition by the following order dated 9.2.1965 :
"The applicant has already taken possession of half of the
suit land from the opponent tenant. She has now applied to
obtain possession of remaining half land on the ground of
defaults. The opponent has already paid the rent due to the
applicant by money order. The opponent has produced the
money order receipt in the matter. It is therefore clear that
the opponent is not the intentional defaulter. I cannot
therefore grant the request of the applicant to hand over the
possession of the remaining half land. The request of the
applicant is therefore refused. The application of the
applicant is therefore dismissed. The parties should bear
their own cost."
2.5) The landlord Anusuyabai died on 23.3.1975, and
thereafter, the name of her sister Shevantabai was entered as
her successor-in-title in the record of rights. The said
Shevantabai filed Application No.72/1994 under Section 32P
read with Section 32F of the Act on 19.1.1994 for a declaration
that the deemed statutory purchase by the tenant be declared as
void and ineffective, as the tenant had failed to fulfil the
mandatory requirement of giving a notice of intimation of
purchase within the time stipulated, under Section 32F (1A) of
the Act.
3. The Agricultural Land Tribunal made an order dated
30.4.1994 accepting the contention of Shevantabai that the
tenant had failed to issue a notice of purchase. The tenant was,
therefore, directed to deliver possession to Shevantabai under
Section 32P(2)(b) of the Act. Feeling aggrieved, the tenant filed
an appeal under Section 74 of the Act before the Sub-Divisional
Officer, Baramati Division, in Tenancy Case No.35/1994. The
appellate authority by order dated 2.6.1995, set aside the order
of the Tribunal and remitted the matter to the Tribunal, to hold
a detailed inquiry into the matter with reference to the earlier
proceedings.
4. The Land Tribunal held an inquiry and made an order
dated 30.9.1995, reiterating its earlier finding that the tenant
had failed to serve a notice of purchase within the stipulated
time and, therefore, had lost the right to purchase the land. The
appellant challenged the said order also in appeal (Tenancy
Case No.27/1995) before the Sub-Divisional Officer, Baramati.
Shevantabai and the Respondent herein who was representing
her then, were the respondents in the said appeal.
5. During the pendency of the appeal, Shevantabai died on
15.4.1996. The said appeal was allowed, in part, by order dated
22.4.1996. The Appellate Authority upheld the order of the
Tribunal to the extent that the tenant had failed to exercise his
right by issuing a notice as required under Section 32F (1A) of
the Act. It, however, set aside the direction to the appellant to
deliver the land to Shevantabai, as that portion of the order was
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passed without holding any enquiry as to landlord’s right to
terminate the tenancy. Consequently, the Land Tribunal was
directed to hold a separate enquiry regarding the right of the
landlord under section 31 read with Section 32F and then, if
necessary, a separate enquiry under section 32P.
6. Both parties, that is the respondent herein (as legal heir of
Sevantabai, claiming to be legatee under her will) as also the
appellant, challenged the order dated 22/24.4.1996 passed by
the Sub-Divisional Officer before the Maharashtra Revenue
Tribunal by filing revision petitions. The Revenue Tribunal by
its common order dated 4.1.1999 rejected the appellant’s
revision and allowed in part, the Respondent’s revision. It held
that after the death of Anusuyabai, the tenant had not exercised
his right to purchase the land, by giving an intimation as
required under section 32F(1A) within the stipulated time and
therefore, his right to purchase became ineffective and the
tenancy came to an end. It also set aside the direction of the
SDO that a separate inquiry should be held regarding the right
of landlord under Section 31 read with Section 32F, followed, if
necessary, by a separate inquiry under Section 32P. A direction
came to be issued for delivering possession of the disputed land
to the Respondent under Section 32P.
7. The appellant challenged the order of the tribunal in W.P.
No.2599/1999. Before the High Court, the appellant contended
that the landlord (Anusuyabai) though a widow, had exercised
her right of terminating the tenancy and seeking possession of
the land; and that in pursuance of the order passed in such
proceedings, he had delivered half of the land and therefore the
question of the successor-in-title of Anusuyabai seeking
possession of the balance land which remained with the tenant
(under section 31 B(1) of the Act), did not arise. The Bombay
High Court dismissed the said writ petition by order dated
9.7.1999 holding that the appellant had failed to prove from the
records produced, that Anusuyabai had exercised the right to
get back possession under section 31(1) of the Act or that the
concerned authority had ordered delivery of half of the land to
her. The said order is challenged by the tenant in this appeal by
special leave.
8. The appellant contended that the High Court committed a
serious error in holding that the records before it did not show
half of the land was ordered to be delivered to the landlord
Anusuyabai under section 31 (1) of the Act. He referred to the
High Court record which contained a copy of the order dated
2.6.1995 of the SDO in Tenancy Case No.35/1994 as an
annexure to the writ petition, wherein it is clearly stated thus :
"This mutation states that the landlady was widow and the
right of tenants to purchase the suit property is postponed.
However, later on there was proceedings under the
Tenancy Act\005. The intimation of this Case No.3/1958 in
Tenancy Case No.518/60 is present in lower court’s papers.
(Page 91) which shows that half of the suit land was
ordered to be handed over to the landlady\005"
The appellant has also produced in this Court, a copy of the
order dated 30.6.1960 in Tenancy Case No.3/1958 directing
delivery of possession of half of the land to Anusuyabai. The
learned counsel for the respondent did not dispute the fact that
half of the land had in fact, been delivered by the tenant to
Anusuyabai in pursuance of the order dated 30.6.1960. This is
even referred to in the list of dates submitted on behalf of
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respondent. Therefore, the facts that Anusuyabai had exercised
her right to seek possession under Section 31(1), that the
concerned Authority had made an order directing the tenant to
deliver half the land to Anusuyabai for her personal cultivation
and that Anusuyabai took possession of half the tenanted land,
are not in dispute.
9. The dispute in this appeal relates to the question as to
whether it was necessary for the tenant to issue a notice of
intimation of purchase under Section 32F (1A) of the Act to the
successor-in-title of Anusuyabai in regard to the half portion
retained by him under section 31 B (1) read with section 31(1)
of the Act and whether the failure to do so resulted in forfeiture
of the tenant’s right to the said land or right to purchase the said
land under the Act.
10. Reference to relevant Sections of the Act will be useful
to decide this question.
10.1) Section 29 deals with the procedure of taking possession.
Sub-section (2) of section 29, as it stood at the relevant point of
time (prior to commencement of Mah. Act 39 of 1964),
provided that no landlord shall obtain possession of any land
held by a tenant except under an order of the Mamlatdar, and
that for obtaining such order he shall make an application in the
prescribed form within a period of two years from the date on
which the right to obtain possession of the land, is deemed to
have accrued to him.
10.2) Chapter III of the Act deals with the special rights and
privileges of tenants and provisions for distribution of land for
personal cultivation. Part I of the said Chapter (section 31 to 31
D) relates to termination of tenancy for personal cultivation and
non-agricultural use. Part II (section 32 to 33) relates to
purchase of land by tenants. Section 31 relates to landlord’s
right to terminate tenancy for personal cultivation. Sub-section
(1) enables the landlord to terminate the tenancy of any land
after giving notice and making an application for possession as
provided in sub-section (2), if the landlord bona fide requires
the land for cultivating it personally. Sub-section (2) stipulates
that 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
31.12.1956 and a copy of such notice shall, at the same time, be
sent to the Mamlatdar, and an application for possession under
Section 29 shall be made to the Mamlatdar on or before the
31.3.1957. Sub-section (3) provides as follows :
"(3) Where a landlord is a minor or a widow, or a person
subject to mental or physical disability, 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 the date on
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."
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10.3) Section 31B provides that in no case a tenancy shall be
terminated under Section 31 in such a manner as will result in
leaving with a tenant, after termination, less than half the area
of the land leased to him. Section 31C provides that the tenancy
of any land left with the tenant after the termination of the
tenancy under section 31 shall not at any time afterwards be
liable to termination again on the ground that the landlord bona
fide requires that land for personal cultivation. Section 31D
provides that if in consequence of the termination of tenancy
under section 31, any part of the land leased is left with the
tenant, the rent shall be apportioned in the prescribed manner in
proportion to the area of the land left with the tenant.
10.4) Section 32(1) provides that on the first day of April, 1957
(tillers’ day) every tenant shall, subject to the provisions of the
next succeeding sections, be deemed to have purchased from
his landlord, free of all encumbrances subsisting thereon on the
said day, the land held by him as tenant, if \026
"a) such tenant is a permanent tenant thereof and cultivates
land personally;
b) such tenant is not a permanent tenant but cultivates the
land leased personally; and
(i) the landlord has not given notice of termination of
his tenancy under section 31; or
(ii) notice has been given under section 31, but the
landlord has not applied to the Mamlatdar on or
before the 31st day of March 1957 under section 29
for obtaining possession of the land; or
(iii) the landlord has not terminated this tenancy on any
of the grounds specified in section 14, or has so
terminated the tenancy but has not applied to [the
Mamlatdar on or before the 31st day of March 1957
under section 29 for obtaining possession of the
lands :"
The words ’subject to the provisions of the next succeeding
sections’ in Section 32(1) was amended as ’subject to other
provisions of this section and the provisions of the next
succeeding sections’ and the following was inserted as sub-
section (3), by Bom. Act 63 of 1958 :
"(3) In respect of the land deemed to have been purchased
by a tenant under sub-section (1) ----
a) the tenant-purchaser shall be liable to pay to the
former landlord compensation for the use and occupation of
the land, a sum equal to the rent of such land every year,
and
b) the former landlord shall continue to be liable to
pay to the State Government the dues, if any, referred to in
clauses (a), (b), (c) and (d) of sub-section (1) of section
10A, where the tenant-purchaser is not liable to pay such
dues under sub-section (3) of that section until the amount
of the purchase price payable by the tenant-purchaser to the
former landlord is determined under section 32H.
10.5) Section 32F deals with the right of tenant to purchase
where landlord is minor, or a widow, or a person subject to any
mental or physical disability. Clause (a) of sub-section (1) of
section 32F provides that notwithstanding anything contained in
the preceding sections, where the landlord is a widow, 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. Sub-section (1A) of section 32F inserted by Bombay Act 38
of 1957, reads thus :
"(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 :"
Sub-section (2) of section 32F provides that the provisions of
section 32 to 32F and 32G to 32R shall, so far as may be
possible, apply to such purchase.
10.6) Section 32G requires the Tribunal to issue notice to the
parties, as soon as may be, after the tillers’ day, record the
statement of the tenant, whether he is willing to purchase the
land and then determine the price of the land to be paid by the
tenant. Sub-section (5) provides that in the case of a tenant who
is deemed to have purchased the land on the postponed date, the
Tribunal shall, as soon as may be, after such date, determine the
price of the land.
11. The position as disclosed by a combined and harmonious
reading of Sections 31, 32, 32F and 32G may be stated thus :
a) Where the landlord has not served on the tenant, a
notice of termination (as stated in clause (b) of sub-
section (1) of section 32), the tenant is deemed to
have purchased the land on the tillers day
(1.4.1957);
b) Where the tenant is deemed to have purchased the
land on the Tillers Day (1.4.1957), the Lands
Tribunal is required to issue notice and determine
the price of land to be paid by tenant. Where there is
a deemed purchase, but the right to purchase is
postponed, the Land Tribunal shall determine the
price of land, as soon as may be after the postponed
date.
c) A landlord had a right to give notice and make an
application for possession after terminating the
tenancy, if he wanted the land bona fide for
personal cultivation, provided the notice was served
on the tenant on or before 31.12.1956 (with copy to
Mamlatdar) and application for possession under
section 29 was filed on or before 31.3.1957.
d) A landlord widow is also entitled to make an
application for possession under sub-section (1) of
section 31 of the Act. Sub-section (3) of section 31
which is an enabling provision, extends the time
within which the widow can seek possession under
section 31(1) of the Act, beyond 31.12.1956. As a
result, where the landlord is a widow, then the
notice required under sub-section (1) of section 31
may be given and the application for possession
under section 29 may be made by her so long as her
interest in the land exists. Such notice can also be
given by the successor-in-title of the widow within
one year from the date on which the interest of the
widow in the land ceases to exist.
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e) Where the landlord is a widow (and she does not
exercise her right under section 31(1) of the Act),
the right to purchase under the deemed purchase is
postponed till the expiry of the period during which
such (disabled) landlord is entitled to terminate the
tenancy under section 31 (3). The tenant desirous of
exercising such right shall, however, given an
intimation in that behalf to the landlord and the
tribunal within one year thereafter, as required
under section 32F (1A).
Consequently, where the landlord, being a widow as
on 1.4.1957, does not choose to terminate the
tenancy for personal cultivation, the tenancy
continues during her lifetime and on the death of the
widow, her successor-in-title will have the right to
terminate the tenancy within one year from the date
of death of the widow. The tenant shall have the
right to purchase such land, under section 32, within
one year from the expiry of the period during which
such successor-in-title of the widow is given the
right to terminate the tenancy under section 31 (3)
by giving an intimation as required under section
32F(1A).
f) Where a landlord, who is a widow, exercises her
right of termination and secures possession of part
of the tenanted land for personal cultivation under
section 31(1) of the Act, then there is no question of
her successor-in-title giving a notice of termination
within one year from the date on which the widow’s
interest ceases to exist. When section 31 (3) ceases
to apply, section 32F also will not apply and there is
no need for the tenant to give any intimation under
section 32F(1A).
g) On an order for possession being made in favour of
a widow-landlord in regard to land up to 50% of the
tenanted land under section 31(1) read with section
31B(1), the widow will get possession of such land
and the tenant continues in possession in regard to
the remaining land. In regard to the land remaining
with the tenant, rent has to be fixed under section
31D, until the purchase price is determined under
section 32G(5) and is paid by the tenant purchaser.
12. If Anusuyabai, the widow landlord who died on
23.3.1975, had died without exercising her right under section
31(1) of the Act, and without taking back half the tenanted land,
her successor-in-title could have exercised the right of
termination for personal use by issuing a notice on or before
23.3.1976 [vide section 31(3) read with section 31(1)&(2) of
the Act]; and the tenant - appellant would have had the right to
purchase the tenanted land under section 32 till 23.3.1977,
provided he gave an intimation to the landlord and the Tribunal
on or before 23.3.1977 under section 32F(1) read with section
32F(1A) of the Act. But as Anusuyabai had exercised her right
to take possession for personal cultivation, under section 31(1)
of the Act, during her life time and got possession of half of the
land, no right survived under section 31(3) to her or her
successor-in-title to seek the remaining land for personal
cultivation having regard to the bar contained in section 31C. If
the widow-landlord and her successor-in-title lost the right to
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terminate the tenancy in regard to the remaining land (having
regard to the bar contained in section 31C) and therefore,
section 31(3) ceased to apply, it follows that section 32F also
did not apply. This is because, the right has to be exercised
under section 32F(1), only where section 31(3) applied. If
section 32F(1) did not apply, there was no need at all for the
tenant to issue any notice of intimation to the landlord or to the
successor-in-title of the landlord proposing to purchase the land
under section 32F(1A).
13. Unfortunately, this aspect of the matter has been
completely overlooked by the High Court and the authorities
under the Act. The authorities under the Act proceeded on the
assumption that even where a widow-landlord had terminated
the tenancy and taken possession of the permissible extent of
tenanted land, section 31(3) would continue to apply and
consequently, section 32F will also apply, and therefore, there
was a need for the tenant to give a notice of intimation of
purchase under section 32F(1A), on the death of Anusuyabai.
The High Court, however, did not examine this aspect at all as
it proceeded on the basis that the widow-landlord did not
terminate the tenancy and take possession of the permissible
extent of land.
14. As the Appellant’s case is governed by section 31(1),
31B(1) and 31C, rent for the land remaining with the tenant
(after the landlord has taken half the land under section 31(1) of
the Act) had to be apportioned as provided in section 31D, and
the liability to pay such rent would continue until price for the
land is determined under section 32G(5) on either the landlord
or the tenant approaching the Tribunal, and such price is paid
by the tenant.
15. Learned counsel for the respondent relied on the
decisions of this Court in Amrit Bhikaji Kale & Ors. V.
Kashinath Janardhan Trade & Anr. [1983 (3) SCC 437], Anna
Bhau Magdum (d) by LRs. v. Babasaheb Anandrao Desai [1995
(5) SCC 243], Appa Narsappa Magdum (D) through LRs. v.
Akubai Ganapati Nimbalkar & Ors. [1999 (4) SCC 443] and
Balchandra Anantrao Rakvi & Ors. V. Ramchandra Tukaram
(Dead) by LRs. etc. [2001 (8) SCC 616], to contend that the
tenant has to issue a notice under section 32F within the period
prescribed and if he fails to do so, he loses the right to purchase
the land and the landlord will become entitled to the same
absolutely. These were all cases where the landlord under
disability had not sought possession for personal cultivation
under section 31(1) and where admittedly, section 31(3) and
32F applied and consequently, there was an obligation on the
part of the tenant to send an intimation under section 32F (1A).
None of the cases related to a widow-landlord who had
terminated the tenancy during her lifetime and taken possession
of a portion of the tenanted land. Therefore, the said decisions
will not apply.
16. As a consequence, we allow this appeal and set aside the
order of the High Court and those of the authorities below and
hold that the appellant-tenant continued to be the tenant of the
land which remained with him after delivering half of the land
to the landlord Anusuyabai in pursuance of the order dated
30.6.1960 made on her application under section 31(1) read
with section 29 of the Act. The appellant shall be entitled to
restoration, if he has been dispossessed by the respondent from
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any part of his land in Gat No.332 in pursuance of the order of
SDO/Revenue Tribunal/High Court. Parties will also be entitled
to seek benefits/reliefs referred to in para 14 above.