Full Judgment Text
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PETITIONER:
LAXMINARAYAN DIPCHAND MAHESHWARI & ORS.
Vs.
RESPONDENT:
MAHARASHTRA REVENUE TRIBUNAL & ORS.
DATE OF JUDGMENT13/02/1975
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
MATHEW, KUTTYIL KURIEN
CITATION:
1975 AIR 1036 1975 SCR (3) 537
1975 SCC (1) 487
ACT:
Bombay Tenancy and Agricultural Lands (vidarbha Region) Act.
1958, ss.43(14A), 46(1) and 49A (1)-Scope of 46, if
protected by , Art. 31A.
HEADNOTE:
Section 40 (1) of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region Act 1958, provides that notwithstanding
anything ontained in Chapter 111. (containing ss. 38 to 57)
the ownership of all lands held by tenants which they are
enttled to purchase from their landlords under any of the
provisions of chapter, shall stand transferred to and vest
in such tenants on and from April 1961. from which date such
tenants shall be deemed to be the full owners of qua lands.
Section 43 (14A) provides that if a tenant fails to exercise
hi,, right of purchase under s. 41 etc. the land shall be
deemed to be surrendered to the landlords; and s. 49A(1)
provides that notwithstanding anything contained in ss.41
and 46 etc., on and from April 1. 1963 the ownership of all
land held by a tenant (being land which is not transferred
to the tenant under s. 46 or which is not purchased by him
under ss. 41 and 56), shall vest in such tenant.
The Agricultural Lands Tribunal took action under s. 46 read
with a. 48 of (he Act for fixing the price of the land in
possession of the respondent who, Was personally cultivating
the land as a cultivating tenant under the appellant-land-
ford. The appellant contested the proceedings without
success before the authorities under the Act as well as in a
writ petition in the High Court. In appeal to this Court,
it was contended (1) that s. 49a is not applicable to the
present case as the opening non-obstante clause of that
section makes no reference to s. 43(14A) while it
specifically mentions ss. 41 and 46; (2) Since the tenant
had not exercised his right to purchase the land in question
under s. 43(14A) the land shall be deemed to have been
surrendered to the appellant and no question of statutory
transfer of ownership of the land would arise; and (3)
Section 46 is violative of Aets. 14 and 19(1)(f) of the
Constitution and is not saved by Art. 31A.
Dismissing the appeal,
HELD : (1),Section 49A is not attracted in the instant case
since that section provides for ownership of land which is
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not transferred to the tenant under s. 46 or which is not
purchased by the tenant under s. 41 or s. 50. The present
case deals with compulsory transfer of ownership under s.
46. [539H]
(2) Under s. 46 the tenants became full owners of the lands
by operation of law and there is a statutory vesting of the
lands in them. This legal vesting by operation of s. 46 on
and from April 1, 1961, cannot be divested in the absence of
any clear provision tinder the Act. Section 43(14A) is a
prospective provision and was introduced in the Act by
amendment on March 1, 1962 and has no application. [540A-D]
(3) Section 46 has achieved the twin purpose of
extinguishment of the right of the landlord in the estate
and conferment of the same right upon the tenant. Once that
happens, there is, in one breath, extinguishment of the
right in favour of the State and the conferment of the said
right in favour of the tenant. Article
81A is therefore clearly applicable and it cannot be
contained that there is violaion of Arts. 14 Ind 19. [541A-
C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil APPeal No. 2609 of
1969.
Appeal by Special Leave from the judgment and order datcd
the 1Oth April, 1969 of the Bombay High Court (Nagpur Bench)
in spccial Civil Appln. No. 1039 of 1966.
W. S. Barlingay, Sheil Sethi and Ganpat Rai, for the
appellants.
538
E.C. Agarwala, for respondent no. 2.
M. C. Bhandare and S. P. Nayar, for respondent No. 5.
The Judgment of the Court was delivered by
GOSWAMI, J. This petit ion by special leave is directed
against the judgment of the Bombay High Court rejecting the
appellant-landlords’ application under articles 226 and 227
of the Constitution with regard to a revenue matter under
the Bombay Tenancy and Agricultural Lands (Vidarbha Region)
Act, 1958 (briefly the Act). The second respondent
(hereinafter the respondent) was the cultivating tenant
under the appellant-landlords. It was never in dispute in
any of the earlier proceedings that the respondent was
personally cultivating the land as a tenant.
On a report of the patwari submitted on April 6, 1963, the
Agricultural Lands Tribunal, Malkapur, took action under
section 46 read with section 48 of the Act for fixing the
price of the land in possession of the respondent. The
appellants contested the proceeding without success and an
appeal preferred before the Special Deputy Collector for
Tenancy met with the same fate. The appellants then
preferred a petition of revision before the Maharashtra
Revenue Tribunal, Nagpur. That also failed. As noticed
earlier eventually the High Court also rejected the writ
application. The short question that had been persistently
raised in all the earlier proceedings and has been
strenuously urged by Dr. Barlingay before us is whether in
view of section 43(14A) of the Act the order of the Revenue
Tribunal is legally sustainable.
In order to appreciate the above submission it is necessary
to look at the relevant provisions.
Section 41 (1) reads as follows
41 (1). "Notwithstanding anything to the
contrary in any
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law, usage or contract but subject to the
provisions of sections 42 to 44 (both
inclusive) a tenant other than an occupancy
tenant shall, in the case of land held by him
as a tenant, be entitled to purchase from the
landlord the land held by him as a tenant and
cultivated by him personally".
It is not necessary to quote section 42 which provides for
the extent of land which a tenant may purchase under section
41.
Section 43 (1) (a) and (14A) upon which much stress has
been laid may be set out :
43 (1) (a). "A tenant who desires to exercise
the right conferred by section 41 shall make
an offer to the landlord stating the price at
which he is prepared to purchase the land,
such price not exceeding twelve times the rent
payable by him and the depreciated value of
any structures, wells and embankments
constructed and permanent fixtures made and
the value of any trees planted on the land by
the landlord after the. period of the last
Settlement or, where no such Settlement is
made during the period of thirty years before
the com-
539
mencement of this Act and the amount of the
arrears of rent, if any, lawfully due on the
day on which the offer is made".
43(14A). "If a tenant fails to exercise his
right of purchase under section 41 in respect
of any land or the purchase of any land
becomes ineffective, the land shall be deemed
to have been surrendered to the landlord, and
thereupon the provisions of sub-sections (1)
and (2) of section 21 and Chapter VI shall
apply to such land as if the land was sur-
rendered by the tenant under section 20".
The next material section is 46(1) which reads
as under
46(1). "Notwithstanding anything in this
Chapter or any law for the time being in force
or any custom, usage, decree, ,contract or
grant to the contrary, with effect on and from
the first day of April 1961, the ownership of
all lands held by tenants which they are
entitled to purchase from their landlords
under any of the provisions of this Chapter
shall stand transferred to and vest in, such
tenants and from such date such tenants shall
be deemed to be the full owners of such lands
Section 49A (1) may also be read;
49A(1). "Notwithstanding anything contained
in section 41 or 46, or any custom, usage,
decree, contract or grant to the contrary but
subject to the provisions of this section, on
and from the 1st day of April 1963 the owner-
ship of all land held by a tenant (being land
which is not transferred to the tenant under
section 46 or which is not purchased by him
under section 41 or 50) shall Stand trans-
ferred to and vest in, such tenant who shall,
from the date aforesaid, be deemed to be the
full owner of such land, if such land is
cultivated by him personally, and.
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It is submitted by Dr. Barlingay that since the tenant had
not exercised his right to purchase the land in question,
under sub-section (14A) of section 43 the land shall be
deemed to have been surrendered to the landlords and no
question of statutory transfer of ownership of the land
would arise. He also submits that section 49A is not
applicable in the instant case as the opening non-obstante
clause of that section makes no reference to section 43(14A)
while specifically mentions section 41 and section 46.
We may at once say that section 49A is not attracted in the
instant case since the section provides for ownership of
land which is not transferred to the tenant under section 46
or which is not purchased by the tenant under section 41 or
section 50. It is admitted by the learned counsel that the
land in question was not purchased by the tenant under
section 41 or under section 50. The only contention is that
this land cannot be the subject matter for compulsory
transfer of ownership under section 46.
540
Sub-section 14(A) of section 43 was inserted by Maharashtra
Act 2 of 1962 with effect from March 1, 1962. On the other
hand section 46(1) brings about a legal consequence with
regard to transfer of
ownership of land to tenants on and from April 1,,1961.
Section46(1) provides clearly and unambiguously that
notwithstanding anything contained in Chapter III
(containing sections 38 to 57) the ownership of all lands
held by tenants, which they are entitled to purchase from
their landlords under any of the provisions of this Chapter,
shall stand transferred to and vest in such tenants on and
from April 1, 1961, from which date such tenants shall be
deemed to be the full owners of such lands. The tenants,
therefore, become full owners of the tenanted lands by
operation of law and there is a statutory vesting of the
lands in them.- This legal vesting by operation of section
46 on and from April 1, 1961, cannot be divested in absence
of any clear provision under ’the Act to that effect only by
reference to a prospective provision like subsection (14A)
of section 43 which came by an amendment much later on March
1, 1962. it is, therefore, not even necessary to consider
the legal effect of the amalgam of the three sections,
namely, sub-section (14A) of section 43, section 46 and
section 49A in this appeal. We are satisfied the revenue
authorities were justified in taking action under section 46
read with section 48 and the order cannot be challenged a",
unsustainable in law.
The learned counsel next contends that section 46 of the Act
is violative of article 19(1) (f) of the Constitution and is
not saved by article 31A which is not applicable. Counsel
submits that under section 46 there is no acquisition by the
State of any estate or of any rights therein or the
extinguishment or modification of any such rights in order
to come within the saving provision of article 31A(1) (a).
According to counsel the land is transferred from the
landlord and vests in the tenant by virtue of section 46.
There is, therefore, no acquisition by the State of any
estate or of any rights therein nor is there any extin-
guishment or modification of such rights in favour of the
State. Section. 46 and such other provisions in the Act are
in furtherance of agrarian reforms which are one of the
principal objects of the Act., The fact that section 46 in
terms transfers the land from landlord to tenant and vests
the ownership in the latter does not mean that there is no
extinguishment of the estate or its rights in favour of the
State for the sole reason that there is no express mention
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of such acquisition by the State in terms. The scheme
underlying the provisions may be briefly stated. The State
being the paramount Owner of the lands had earlier granted
the land to the tenure holders who are the landlords under
the Act. In order to transfer the land to tenants from the
landlords the first step the
541
State will have to take is to extinguish the rights of the
tenure holders tinder the paramount owner. It is only then
that transfer of the same land to the tenants under the
landlords will be possible. Section 46, in our opinion, has
achieved the twin purpose of extinguishment of the right of
the landlord in the estate and conferment of the same right
upon the tenant. Once that happens there is in one breath
extinguishment of the right in favour of the State and the
conferment of the said light in favour of the tenant. There
is therefore, no substance in the contention that article
31A is not applicable in this case to enable the appellants
to challenge the provision under article 19(1) (f ) of the
Constitution. The objection of the learned counsel is
therefore, with,out substance. Since article 31A is clearly
applicable, we need not ,deal with the objection of counsel
on the score of violation of article 14 of the Constitution.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed..
542