Full Judgment Text
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PETITIONER:
SAHADU BALA BOTRE (DEAD) BY LRS.AND ANR.
Vs.
RESPONDENT:
NAMDEO BAPUJI KERALA (DEAD) BY LRS.AND ORS.
DATE OF JUDGMENT: 14/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 1658 JT 1996 (3) 72
1996 SCALE (2)579
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The only question in this appeal is whether the
interpretation put up by the High Court on second proviso to
Section 84A of the Bombay Tenancy and Agricultural Land Act,
1948 is correct? The appeal arises from the judgment dated
June 17/18, 1970 of Bombay High Court made in SCA
No.1133/64. The facts are not in dispute. The appellant had
purchased along with another undivided interest in Survey
No.59 of a total extent of 106 acres situated in Sadavadi
Village, Taluka Mawal in Pune District in which it is found
as a fact that the respondent Namdeo Bapuji Kerala was the
tenant. After unsuccessful attempt before Revenue Forums the
appellant filed an application under Section 84A for
validation of the sale deed which the appellant had. Though
the Revenue Forums found that the appellant and the
respondent Sahadu Bal a Botre and Namdeo Bapuji Kerala were
tenants in common, in Appeal No .21/1957 by order dated
February 28, 1958 it was held that Sahadu Bala Botre was not
the tenant. That order had become final. Thereby the
respondent became the sole tenant of the land. The question
then is: whether validation of the sale could be granted?
Section 84A reads thus:
"84A. (1) A transfer of any land in
contravention of section 63 or 64
as it stood before the commencement
of the Amending Act, 1955, made
after the 28th day of December,
1948 (when the Bombay Tenancy and
Agricultural Lands Act, 1948, came
into force) and before the 15th day
of June, 1955, shall not be
declared to be invalid merely on
the ground that such transfer was
made in contravention of the said
sections if the transferee pays to
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the State Government a penalty
equal to one per cent of the
consideration or Rs.100/- whichever
is less:
Provided that, if such
transfer is made by the landlord in
favour of the tenant in actual
possession, the penalty leviable in
respect thereof shall be one rupee:
Provided further that if any
such transfer is made by the
landlord in favour of any person
other than the tenant in actual
possession, and such transfer is
made either after the unlawful
eviction of such tenant, or results
in the eviction of the tenant in
actual possession, then such
transfer shall not be deemed to be
validated (unless such tenant has
failed to apply for the possession
of the land under sub-section (1)
of section 29 within two years from
the date of his eviction from the
land),
(2) On payment of such penalty, the
Mamlatdar shall issue a certificate
to the transferee that such
transfer is not invalid.
(3) Where the transferee fails to
pay the penalty referred to in sub
section (1) within such period as
may be prescribed, the transfer
shall be declared by the Mamlatdar
to be invalid and thereupon the (5)
of Section 84C shall apply."
We are concerned with the second proviso in this case.
The main part of sub-section (1) postulates that a transfer
of any land in contravention of Section 63 or 64 as it stood
before the commencement of 1955 Amending Act, made after
December 28, 1948 and before June 15, 1955, i.e., when the
Amending Act was brought into force, shall not be declared
to be invalid merely on the ground that such transfer was
made in contravention of Section 63 or 64 provided that the
transferee pays to the Government a penalty equal to 1% of
the consideration or Rs.100/- whichever is less. Nonetheless
the second proviso seeks to protect interest of the
cultivating tenant. It says that if such transfer is made by
the landlord in favour of any person other than the tenant
in actual possession, and such transfer is made either
after the unlawful eviction of such tenant, or results in
the eviction of the tenant in actual possession, then such
transfer shall not be deemed to be validated unless such
tenant has failed to apply for possession of the land under
sub-section (1) of Section 29 within two years from the date
of his eviction from such land. The later clause dealing
with Section 29(1) does not apply to the facts of the case.
If validation of the sale results in dispossession of the
respondent tenant, it should should not be made. Therefore,
in view of the specific embargo created by the second
proviso which is mandatory and beneficial to the tenant, the
authorities below were well justified in refusing the grant
of validation of the sale made in favour of the appellant.
The appeal is accordingly dismissed but in the
circumstances without costs.
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