Full Judgment Text
2024 INSC 203
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8356 OF 2017
Baban Balaji More (Dead) by LRs. & others … Appellants
Versus
Babaji Hari Shelar (Dead) by LRs. & others … Respondents
J U D G M E N T
SANJAY KUMAR, J
1. This appeal entails correlation of three vintage legislations,
requiring not only their interpretation but also their harmonious
construction. The oldest of the three statutes is the Maharashtra Hereditary
Offices Act, 1874 (for brevity, ‘the 1874 Act’). The next is the Maharashtra
Tenancy and Agricultural Lands Act, 1948 (for brevity, ‘the Tenancy Act’),
Signature Not Verified
Digitally signed by
SNEHA DAS
Date: 2024.03.14
16:36:54 IST
Reason:
and the third is the Maharashtra Revenue Patels (Abolition of Offices) Act,
1962 (for brevity, ‘the Abolition Act’).
1
2. The 1874 Act was enacted to declare and amend the law relating
to Watans , i.e., hereditary offices. Balaji Chimnaji More, the predecessor of
the present appellants, held a Patel Watan since prior to August, 1898. He
was assigned Watan property, viz., a 50% share in an extent of 20 acres of
land in Survey No. 386 and a 50% share in an extent of 16 acres in Survey
No. 410 of Village Chikhali. Babaji Hari Shelar and Ganapati Dhondiba
Tapkir (or Tapkire), the predecessors of the respondents herein, were
cultivating this Watan property as tenants since 1955-56 or thereabouts.
3. While so, Balaji Chimnaji More died sometime in February/March,
1958. Thereupon, his legal heirs, namely, Baban Balaji More, Rama Balaji
More and Jagannath Balaji More, filed an application on 14.06.1958 under
Section 5 of the 1874 Act. As per this provision, a Watandar was not
competent to mortgage, charge, alienate or lease, for a period beyond the
term of his natural life, any Watan or any part thereof or any interest therein
to or for the benefit of any person who was not a Watandar of the same
Watan , without the sanction of the State Government or the Commissioner,
as the case may be. By order dated 18.04.1961, the Assistant Collector,
I/C, Haveli Taluka, Poona, held that the tenancy created by the father of the
applicants could not extend beyond his lifetime and the applicants would,
therefore, have the right to recover possession of the said lands after the
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death of their father. He, accordingly, allowed their application and ordered
that possession of the lands falling to their share should be handed over to
them under Sections 11 and 11A of the 1874 Act.
4. Aggrieved thereby, the tenants, viz., Babaji Hari Shelar and the
legal heirs of late Ganapati Dhondiba Tapkir, namely, Laxman Ganapati
Tapkir, Rama Ganapati Tapkir, Damu Ganapati Tapkir and Babu Ganapati
Tapkir, filed Watan Appeal No. 6 of 1961 before the Additional Collector,
Poona, under Section 77 of the 1874 Act. However, the said appeal was
dismissed, vide order dated 27.03.1962.
5. Thereupon, the tenants carried the matter to the Additional
Commissioner, Poona Division, Poona, on 14.04.1962. Order dated
12.06.1962 was passed by the Additional Commissioner, treating the
proceeding as an appeal instituted against the order dated 27.03.1962
passed in Watan Appeal No. 6 of 1961. Thereby, the Additional
Commissioner rejected the appeal. The appellants would argue that this
proceeding cannot be treated as an appeal, inasmuch as the statutory
scheme allowed only one appeal under Section 77 of the 1874 Act, and
they would contend that this proceeding should be construed to be a
revision filed under Section 79 thereof, with necessary consequences. This
aspect will be dealt with hereinafter.
3
6. In any event, during the pendency of this proceeding, the
possession of the lands in question was handed over on 22.04.1962 to the
legal heirs of the deceased Watandar , in terms of the order dated
18.04.1961 passed by the Assistant Collector, I/C, Haveli Taluka, Poona.
At this stage, the Abolition Act was promulgated and it came into
7.
effect from 01.01.1963. As per Section 3 thereof, all Patel Watans stood
abolished from the appointed date, i.e., 01.01.1963. In consequence, all
incidents appertaining to the said Watans , including the right to hold office
and Watan property, stood extinguished. Further, Section 3(c) provided
that, subject to the provisions of Sections 5, 6 and 9, all Watan lands stood
resumed and were subject to payment of land revenue under the provisions
of the relevant Code, as if they were unalienated land. Section 5 thereof,
however, provided for regrant of the Watan land to the Watandar . Section
5(1) stated that Watan land resumed under Section 3 shall on an
application therefor, being in relation to cases not falling under Sections 6
and 9, be regranted to the Watandar of the Watan to which it appertained
on payment by or on behalf of the Watandar to the State Government of
the occupancy price equal to twelve times the amount of the full
assessment of such land within the prescribed period and in the manner
prescribed and, thereupon, the Watandar shall be an occupant within the
4
meaning of the relevant Code in respect of any such land and shall be
primarily liable to pay land revenue to the State Government in accordance
with the provisions of that Code. The proviso to Section 5(1) stipulated that
in respect of Watan land which was not assigned under the existing Watan
law as remuneration of an officiator, the occupancy price equal to six times
the amount of the full assessment of such land shall be paid by or on behalf
of the Watandar for the regrant of such land.
8. The appellants made an application under Section 5 of the
Abolition Act for regrant of the Watan lands, as their case did not fall within
the ambit of either Section 6 or Section 9 of the 1874 Act. By order dated
27.11.1964, the Mamlatdar , Haveli, noted that they had paid an amount
equal to six times the assessment on 17.11.1964; that a Certificate of the
Talhati stating to that effect was also on record; and accordingly ordered
that the said lands be regranted to them, subject to conditions.
In the meanwhile, it appears that the tenants filed a revision before
9.
the Government assailing the orders passed against them. However, the
appellants claim that it was only on 11.12.1964 that they suddenly received
a copy of the letter dated 10.07.1964 addressed to Damu Ganapati Tapkir
by the Officer on Special Duty, Revenue and Forest Department,
Government of Maharashtra, stating that, pursuant to Government Letter
5
dated 01.11.1963, he was to state that the Government was pleased to set
aside the order dated 18.04.1961 passed by the Pranth Officer, Taluka
Haveli, District Poona; the order dated 27.03.1962 passed by the Collector,
Poona, in Watan Appeal 6 of 1961; and the order dated 12.06.1962 passed
by the Commissioner, Poona Division, in Case No. W.T.N.P.6/33.
Thereupon, the Collector, Poona, directed the Mamlatdar , Haveli, to ensure
delivery of possession of the lands to the tenants.
10. Aggrieved by this development and complaining that they were not
given notice or a hearing prior to the Government’s decision, the appellants
preferred an appeal before the Commissioner, Poona, assailing the
direction of the Collector, Poona, to the Mamlatdar , Haveli, to hand over
possession of the subject lands to the tenants. The Commissioner, Poona,
rejected their request, vide letter dated 02.12.1964. They then approached
the Chief Minister, State of Maharashtra, by way of written representation
dated 11.12.1964. However, they were informed by the Officer on Special
Duty, Revenue and Forest Department, Government of Maharashtra, vide
letter dated 30.12.1964, that their representation dated 11.12.1964 could
not be considered. Aggrieved by the rejection of their representation under
letter dated 30.12.1964, the appellants filed Special Civil Application No. 61
of 1965 before the Bombay High Court under Article 227 of the
6
Constitution. Interim stay was granted therein on 15.01.1965 and the case
was disposed of on 25.03.1969, in these terms:
‘By consent, the Court makes absolute the rule granted by it on
15.01.1965, sets aside the order of the State Government dated 01.11.1963
communicated to the petitioners on 10.07.1964 by the Officer on Special Duty
and remands the matter to Government with a direction to rehear the matter
after giving opportunity to the petitioners and the respondents to be heard in
their defence.
No order as to costs.’
11. The revision was taken up as Case No. PTIL-3464/102644-L-5 by
the Officer on Special Duty (Appeals and Revisions), Revenue and Forest
Department, Government of Maharashtra. This revision was allowed by
Order dated 03.05.1982 and all the orders passed by the authorities
against the tenants were set aside. In consequence, the lands were
directed to be restored to the tenants. In the order dated 03.05.1982, it was
noted that the Abolition Act had come into force on 01.01.1963 but as on
that date, the tenants were not in possession as it was an admitted fact that
the appellants were delivered possession on 24.04.1962. However, the
revisional authority opined that the mere factum of losing possession would
not be determinative of termination of the tenancy and if the order to that
effect was based on a wrong presumption or wrong interpretation of law,
the tenancy could not be said to have been terminated even if such an
order was executed. The authority opined that the argument that the
7
possession of the tenants became unauthorized upon the death of the
original Watandar and that no tenancy rights subsisted on the appointed
date, viz., 01.01.1963, could not be accepted. The authority concluded that
the Assistant Collector’s and Additional Collector’s orders in deciding the
case under Section 11 of the 1874 Act, ignoring the provisions of the
Tenancy Act, were wrong. In effect, the authority held that the tenancy must
be presumed to be continuing and that the orders passed to the contrary
were improper and illegal and, consequently, execution of such orders had
no effect on the rights of the tenants. Holding so, the authority allowed the
tenants’ revision, set aside the orders passed against them and directed
that the lands be restored to them.
12. Assailing this order, the appellants filed Writ Petition No. 1774 of
1982 before the Bombay High Court. In the judgment dated 01.02.2005
passed therein, the High Court observed that possession of the lands was
delivered to the heirs of the Watandar on 24.04.1962 during the pendency
of revisional proceedings, only because there was no stay of the order
passed by the lower authority, and held that such delivery would be subject
to final determination of the rights of the parties. Further, taking note of the
fact that the Abolition Act came into effect on 01.01.1963, the High Court
held that the tenancy was still subsisting on that day despite the delivery of
8
possession of the lands to the heirs of the Watandar , as the proceedings
were still pending and execution of the order directing delivery of
possession was subject to the final outcome thereof. The High Court,
therefore, concluded that the tenancy was not legally and validly
determined. As regards the appellants’ contention that Section 5 of the
1874 Act automatically determined the tenancy, the High Court rejected it
on the ground that once a legal and valid tenancy was subsisting on
01.01.1963, the tenants would be entitled to all the benefits under Section 8
of the Abolition Act and the provisions of the Tenancy Act. The High Court
accordingly held that there was no merit in the writ petition and dismissed
it. It is this judgment that is subjected to challenge before us in this appeal.
13. While issuing notice on 04.04.2005, this Court, directed status quo
existing as on that day to be maintained. This order is still in operation.
14. It would be appropriate at this stage to note the statutory scheme
of the 1874 Act and the other relevant provisions thereof. Section 4 of the
1874 Act defines Watan property and Watandar . The definition of Watan
property, to the extent relevant, reads thus:
‘ Watan property" means the moveable or immovable property held, acquired, or
assigned for providing remuneration for the performance of the duty appertaining to an
hereditary office. It includes a right to levy customary fees or perquisites, in money or in
kind, whether at fixed times or otherwise……’
9
Watandar is defined as under:
‘ Watandar" means a person having an hereditary interest in a watan. It includes a
person holding watan property acquired by him before the introduction of the British
Government into the locality of the watan, or legally acquired subsequent to such
introduction, and a person holding such property from him by inheritance. It includes a
person adopted by an owner of a watan or part of a watan, subject to the conditions
specified in sections 33 to 35’
Section 5 of the 1874 Act, to the extent relevant, reads thus:
‘5. (1) Without the sanction of the State Government, or in the case of a
mortgage, charge, alienation, or lease of not more than thirty years, of the
Commissioner it shall not be competent—
(a) to a watandar to mortgage, charge, alienate or lease, for a period beyond the
term of his natural life, any watan, or any part thereof, or any interest therein, to or for
the benefit of any person who is not a watandar of the same watan; …..’
15. Section 11 of 1874 Act authorized the Collector to declare any
alienation of the nature described in Section 10 thereof to be null and void,
if it had taken place, otherwise than by virtue of, or in execution of a decree
or order of any Court, after recording his reasons in writing. Section 11A
empowered the Collector to either summarily resume possession of the
property in relation to which an order of the Court had been passed on
receipt of his certificate under Section 10, or on his own declaration under
Section 11, and the said property shall thenceforward revert to the Watan .
10
16. Much controversy was generated in the context of the proceeding
filed before the Additional Commissioner, Poona Division, Poona, that
resulted in the order dated 12.06.1962. The appellants would contend that
this ‘proceeding’ must be construed to be a revision filed under Section 79
of the 1874 Act and the State Government could not have entertained
another revision thereafter, as the statutory scheme speaks of only one
revision being maintainable under that provision. However, perusal of the
order dated 12.06.1962 passed by the Additional Commissioner, Poona
Division, Poona, reflects that the same was dealt with as an ‘appeal’ and
not as a ‘revision’. Trite to state, appellate jurisdiction is vastly different from
revisional jurisdiction, in terms of its scope and extent of review, and when
the authority dealing with matter proceeded under the impression that it
was exercising appellate jurisdiction the same cannot be construed to be
revisional jurisdiction, contrary to what has been stated in the order itself.
The entertainment of this ‘appeal’ has been explained by pointing out that
Section 203 of the Bombay Land Revenue Code, 1879, titled ‘Appeals and
Revision’, states to the effect that, in the absence of any express provision
or any law to the contrary, an appeal shall lie from any decision or order
passed by a Revenue Officer under the Code or any other law for the time
being in force to that Officer’s immediate superior. However, as pointed out
11
by the appellants, the scheme of the 1874 Act did not permit a ‘second’
appeal being maintained under Section 77 thereof. In effect, the proceeding
before the Additional Commissioner, Poona Division, Poona, was utterly
misconceived and was not maintainable. However, once such a
misconceived ‘appeal’ was entertained and resulted in the order dated
12.06.1962, which was bereft of jurisdiction, a statutory revision came to be
filed before the State Government under Section 79 of the 1874 Act.
Significantly, this revision called in question the appellate order dated
27.03.1962 also and upon being heard afresh, pursuant to the ‘consent
order’ of the High Court in Special Civil Application No. 61 of 1965, it
culminated in the order dated 03.05.1982. Having consented to the remand
of the revision for hearing afresh, the appellants cannot, in any event, raise
this issue now. Therefore, the contention of the appellants in this regard is
without merit and is rejected accordingly.
17. Before we proceed to take a look at the provisions of the Tenancy
Act, it may be noted that the precursor thereof was the Bombay Tenancy
Act, 1939. It was applicable to the whole of the Province of Bombay, except
Bombay City, and was intended to protect tenants of agricultural lands. This
statute stood repealed upon the Tenancy Act coming into force in
December, 1948. The Tenancy Act was enacted to amend the law relating
12
to tenancy of agricultural lands and to make certain other provisions in
regard to those lands. It was placed in the Ninth Schedule to the
Constitution and stood protected under Article 31(b) thereof. Section 88 of
the Tenancy Act exempted Government lands and certain other lands from
the provisions thereof.
18. Agrarian reforms were undertaken to alleviate the plight of
agricultural tenants and resulted in beneficial measures being introduced
for them from 01.04.1957. This day came to be known as ‘Tillers’ Day’.
Amendments were made to the Tenancy Act in this context and a separate
Chapter enabling purchase of tenanted lands by the tenants was inserted
therein. Sections 32 to 32-R were introduced thereby in the Tenancy Act.
Section 32 is titled ‘Tenants deemed to have purchased land on Tillers’ day’
and Section 32(1) stated that, on the first day of April, 1957, every tenant
shall, subject to the other provisions of that section and 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 a tenant. Sections 32-A to 32-R gave effect to the tenant’s right to
purchase the tenanted agricultural land.
19. The issue presently is whether the Tenancy Act had application to
the subject Watan lands. The appellants would contend that it had no
13
application, be it on Tillers’ Day or in February/March, 1958, when Balaji
Chimnaji More, the original Watandar , died and an application was made
by his legal heirs under Sections 5 of the1874 Act. It is their case that the
exemption under Section 88 of the Tenancy Act was applicable to these
lands. To the extent relevant, the said provision, after its amendment with
effect from 01.08.1956, reads as under:
‘88. Exemption to Government lands and certain other lands.-
(1) [Save as otherwise provided in sub-section (2), nothing in the
foregoing provisions of this Act] shall apply,-
[a] to lands belonging to or held on lease from, the Government;
……………………’
An ‘Explanation’ was inserted in relation to the above clause (a) in
July, 1958. It reads as under:
‘[ Explanation .- For the purposes of clause (a) of sub-section (1) of this section
land held as inam or watan for service useful to Government and assigned as
remuneration to the person actually performing such service for the time being, under
Section 23 of the Bombay Hereditary Offices Act, 1874, or any other law for the time
being in force, shall be deemed to be land belonging to the Government.]’
Insertion of this ‘Explanation’ was not an amendment of the provision,
which would have prospective effect and, thereby, not apply to the
application filed on 14.06.1958 under Section 5 of the 1874 Act. The
‘Explanation’ merely explained the position and was not substantive in
nature. It is, therefore, deemed to have come into operation from the date
14
on which Section 88(1) was amended in August, 1956. Thereby, the limited
applicability of the provision to certain Watan lands was clearly delineated.
In turn, Section 23 of the 1874 Act reads as follows:
‘23. Subject to the provisions of this Act and or any other law for the time being in
force regarding Service Inams, Cash allowances and Pensions, it shall be the duty of
the Collector to fix the annual emoluments of officiators appointed under the provisions
of this Act, and to direct the payment thereof to the officiators for the time being.
It shall be lawful for the Collector for this purpose to assign watan property, or
the profits thereof, towards the emoluments of officiators. The existing assignments
shall, until altered by competent authority, be taken to have been made under this
section. With the sanction of the State Government the Collector may, as occasion
arises, alter the assignment and may increase or diminish it in value, such increase or
diminution being made rateably among the holders in proportion to the profit derived by
such holders respectively from the watan.’
Thereafter, Section 88CA was inserted in the Tenancy Act by
Amendment Act No.63 of 1958 with effect from 11.07.1958. It reads thus:
‘88CA. Sections 32 to 32R not to apply to certain service lands.- Nothing in
sections 32 to 32-R (both inclusive), 33-A, 33-B, 33-C shall apply to land held as inam
or watan for service useful to Government but not assigned as remuneration to the
person actually performing such service for the time being under section 23 of the
Bombay Hereditary Offices Act, 1874, or any other law for the time being in force.’
20. A conjoint reading of the above provisions indicates that all Watan
lands were not to be treated as Government lands. The ‘Explanation’ to
Section 88 clarified the position with regard to Watan lands, other than
those covered by Section 23 of the 1874 Act, as it manifests that only
15
Watan land assigned as remuneration to an officiator performing service
under Section 23 of the 1874 Act etc. shall be deemed to be land belonging
to the Government. Thus, only Watan lands covered by Section 23 of the
1874 Act were to be treated as Government lands as per Section 88(1)(a).
This is further clarified by Section 88CA inserted in the year 1958, which
stated that Sections 32 to 32-R, 33-A, 33-B and 33-C would not apply to
land held as Inam or Watan for service useful to the Government,
excepting land assigned as remuneration under Section 23 of the 1874 Act
etc. It is, therefore, clear that only Watan lands assigned as remuneration
for service under Section 23 of the 1874 Act were to be treated as
Government lands and stood excluded from the provisions of the Tenancy
Act. Admittedly, Balaji Chimnaji More was not an ‘officiator’ covered by
Section 23 of the 1874 Act. This is also demonstrated by the fact that his
legal heirs paid only six times the assessment for regrant of the Watan
lands under Section 5 of the Abolition Act and not twelve times, as would
be applicable to an officiator. Ergo , the subject Watan lands were not
covered by Section 88(1)(a) of the Tenancy Act and could not be treated as
Government lands.
21. By virtue of the ‘Explanation’ to Section 88(1)(a) of the Tenancy
Act, all other Watan lands, including the subject Watan lands, were covered
16
by all the provisions of the Tenancy Act. However, Section 88CA thereof,
introduced in the statute book in July, 1958, granted such Watan lands
exemption from Sections 32 to 32-R, 33-A, 33-B and 33-C. Therefore,
Sections 29 and 31 of the Tenancy Act were very much applicable to such
Watan lands all through. Section 29, titled ‘Procedure of taking possession’,
states to the effect that no landlord shall obtain possession of any land or
dwelling house held by a tenant except under an order of the Mamlatdar
and for obtaining such an order, he should make an application in the
prescribed form within the prescribed time. Section 31 is titled ‘Landlord’s
right to terminate tenancy for personal cultivation and non-agricultural
purpose’ and provided the mode and method in which a landlord could
terminate the tenancy of any land, except a permanent tenancy.
Thereunder, the landlord had to file an application for possession before
the Mamlatdar before Tillers’ Day. This being the position, the heirs of the
original Watandar could not have aspired to secure possession without
reference to this procedure.
22. The limited exemption from certain provisions of the Tenancy Act,
afforded by Section 88CA thereof, continued until the Abolition Act came
into force on 01.01.1963. Thereafter, as the very institution of Patel Watan
stood abolished, the limited exemption extended to such Watan lands
17
under Section 88CA of the Tenancy Act also ceased. This is made clear by
Section 8 of the Abolition Act, which reads as under:
‘ 8. Application of existing tenancy law- if any watan land has been lawfully
leased and such lease is subsisting on the appointed day, the provisions of the relevant
tenancy law shall apply to the said lease, and the rights and liabilities of the holder of
such land and his tenant or tenants shall, subject to the provisions of this Part, be
governed by the provisions of that law:
Provided that, for the purposes of application of the provisions of the relevant
tenancy law in regard to the compulsory purchase of land by a tenant, the lease shall be
deemed to have commenced from the date of the regrant of the land under section 5 or
6 or 9, as the case may be.
Explanation- For the purposes of this section, the expression “land” shall have
the same meaning as is assigned to it in the relevant tenancy law.’
23. Therefore, after the advent of the Abolition Act, Patel Watan
land which was lawfully leased, and the lease of which was subsisting as
on 01.01.1963, stood covered by the Tenancy Act in its entirety and the
tenant of such Watan land was entitled to all the benefits under the
provisions thereof, including the right to purchase such land. The proviso to
Section 8 indicates that, for the purpose of fixing the purchase price under
the provisions of the Tenancy Act so as to enable the purchase of such land
by the tenant, the lease shall be deemed to have commenced from the
date of regrant of the land under Sections 5, 6 or 9, as the case may be.
18
24. Earlier, this Court had occasion to consider this proviso in
1
Sadashiv Dada Patil vs. Purushottam Onkar Patil (Dead) by LRs. . The
respondent therein was a tenant of Watan land and the appellant was the
landlord. The issue was whether Section 32-O of the Tenancy Act had
application in view of the proviso to Section 8 of the Abolition Act. Section
32-O is titled ‘Right of Tenant whose tenancy is created after Tillers’ Day to
purchase land’. It stated that in respect of any tenancy created after Tillers’
Day and if the landlord is not a serving member of the Armed Forces, a
tenant cultivating such land personally shall be entitled, within one year
from the commencement of such tenancy, to purchase the land held by him
from the landlord. The issue before this Court was whether a tenant of
Watan land was required to exercise his right to purchase the land within
one year of the regrant, in view of the proviso to Section 8 of the Abolition
Act stating that the lease is deemed to have commenced from the date of
such regrant of the land. In effect, the question was whether the tenancy is
to be treated as a fresh lease commencing on the date of the regrant. At
the outset, this Court opined that, indisputably, the rights and obligations of
the parties were governed by the Tenancy Act. Section 31 thereof was
taken note of and as no termination of the tenancy had been effected
thereunder, this Court held that the tenancy continued till the declaration of
1
(2006) 11 SCC 161
19
Tillers’ Day on 01.04.1957. Thereafter, by virtue of Section 32 of the
Tenancy Act, the tenant was deemed to have purchased the tenanted
agricultural land from his landlord. Noting that the provisions of the Abolition
Act and the Tenancy Act were required to be construed harmoniously,
keeping in view the purport and object that they seek to achieve, this Court
observed that Section 32 of the Tenancy Act conferred an absolute right
upon the tenant. Therefore, the proviso to Section 8 of the Abolition Act
could not be read in such a manner as to divest the tenant of the vested
right of purchase created under Section 32 of the Tenancy Act. The proviso
was held to have merely fixed the date of the lease for reckoning the
purchase price to be paid to the landlord. Thereby, no new tenancy was
created and Section 32-O of the Tenancy Act did not stand attracted. It was
held that the proviso to Section 8 had a limited role to play and it merely
postponed the operation of the statute. It was held that it had to be read in
the light of Section 32G and Section 32O of the Tenancy Act and be
interpreted accordingly, i.e., it did not create any right in favour of the
landlord nor did it take away the right of the tenant.
25. It would be apposite at this stage to take note of the decisions of
the Bombay High Court on various issues arising under these three
legislations. In its Full Bench decision in Dattatraya Keshav Deshpande
20
2
vs. Tukaram Raghu Chorage , the Court held that Sections 9, 10 and 11
of the 1874 Act were framed to protect Watan property from unauthorized
alienations and the Collector is empowered under Section 11 to declare
any such unauthorized alienation to be null and void after recording his
reasons in writing. This judgment, having been rendered long before the
other two legislations came into existence, has to be understood keeping in
mind the later developments in the context of the Tenancy Act and the
Abolition Act. The 1874 Act, therefore, cannot be treated as an
independent, self-contained and complete code in itself.
26. In Govind Ramchandra Patil vs. Bapusaheb Krishnarao Patil
3
and others , a Division Bench dealt with the question as to whether a
lease granted by a Watandar would continue to operate to the benefit of the
tenants by virtue of the provisions of the Tenancy Act despite the Abolition
Act. The Bench opined that the intention of the legislature was clear that
the tenants on the land, who were lessees before the Tenancy Act came
into force, should continue to be on the land unless the landlord himself
required the land for his personal cultivation or the tenant was guilty of any
defaults mentioned in Section 14 of the Tenancy Act. The Bench, therefore,
concluded that it was not open to the Watandar to ask for a declaration
2
AIR 1921 Bom 17
3
Special Civil Application No.1741 of 1961, decided on 13.12.1962
21
under Section 11 of the 1874 Act that the lease became null and void and
pray for restoration of possession of the land. Though it was argued that
the Watandar was only asking for a declaration under Section 5 of the 1874
Act that the tenancy had become null and void on account of the death of
the original Watandar , the Bench opined that Section 14(1) of the Tenancy
Act provided that the tenancy of a land held by a tenant shall not be
terminated unless the tenant is guilty of the defaults mentioned therein.
Further, as Section 29(2) of the Tenancy Act provided that a landlord shall
not be entitled to claim possession of the land leased out to a tenant
otherwise than by way of an application to the Mamlatdar under the
Tenancy Act, the Bench concluded that the landlord could recover
possession of the land from the tenant only on the grounds provided in the
Tenancy Act and in no other way could the landlord obtain possession from
the tenant.
27. In Kallawwa Shattu Patil and others vs. Yallappa Parashram
4
Patil and another , a learned Judge noted that s uo motu proceedings
initiated by the Revenue authorities under Section 32G of the Tenancy Act
had to be dropped in view of the fact that the land was found to be Watan
land and no purchase price in respect thereof could be fixed till the date of
regrant of the land in favour of the landlord. On facts, the learned Judge
4
(1992) 1Mah.LJ 34
22
found that the Watan land was lawfully leased in favour of the tenant long
before 01.04.1957 and the said lease was subsisting on the appointed day.
The provisions of the Tenancy Act, therefore, became applicable to the
lease forthwith and only the compulsory purchase of the land, as per
Section 32G of the Tenancy Act, could not be availed of by the tenant until
the regrant of the said land to the landlord under the Abolition Act. The
learned Judge held that the landlord did not create a fresh tenancy in
favour of the tenant on 01.04.1957 and Section 32O of the Tenancy Act had
no application, as it would not be attracted to a case where the land was
already leased out to the tenant prior to 01.04.1957. The proviso to Section
8 of the Abolition Act was stated to create a legal fiction for an extremely
limited purpose, i.e., for the purpose of fixing the price in respect of the
statutory purchase of the land. For that limited purpose, the land is deemed
to have been leased out from the date of regrant but it did not follow
therefrom that the landlord created a fresh lease in respect of the said land
on the date of the regrant as the old lease had never come to an end.
28. In Pradeeprao @ Virgonda Shivgonda Patil vs. Sidappa
Girappa Hemgire since deceased through his heirs and LRs.
5
Ginnappa Sidappa Hemgire and others , a learned Judge again affirmed
the aforestated legal position and held that merely because there was a
5
(2004) 3 Mah. L.J. 75
23
regrant of the Watan land in favour of the Watandar , it did not mean that a
new lease was created on that day in favour of the tenant. The learned
Judge found that after the Watan was abolished, the landlord paid the
amount towards the occupancy price within the prescribed time and the
land stood regranted to him. As the land stood regranted, the tenant
acquired the right to purchase the said land by virtue of the provisions of
the Tenancy Act.
29. In Kondabai Ganu Barkale (since deceased) through her Legal
Heirs Smt. Housabai P Bhongale and others vs. Pandit @ Shankar D.
Patil (since deceased) through his Legal Heirs Waman S.Patil and
6
others , a learned Judge noted that the Tribunal had erred in holding that
the tenancy in that case was created long after Tillers’ Day. The learned
judge found that there was no dispute as to the fact that the tenancy in
respect of the said land was created long before Tillers’ Day and by virtue
of Section 88CA of the Tenancy Act, Section 32 to Section 32–R of the
Tenancy Act were inapplicable thereto at that time. However, after the
Abolition Act and regrant of the Watan land to the landlord thereunder, the
provisions of the Tenancy Act became applicable to the subject land with
full vigour. Such application, by operation of law, was not to be treated as
the creation of a new tenancy by the landlord after Tillers’ Day. The Tribunal
6
(2016) 2 Mah. LJ 282
24
was, therefore, held to be in clear error in applying the provisions of Section
32O of the Tenancy Act to the case.
30. We find ourselves in respectful and complete agreement with the
views expressed by the Bombay High Court in the above decisions. In the
case on hand, it is the contention of the appellants that there was no lease
subsisting as on 01.01.1963, owing to the order dated 18.04.1961 passed
upon the application made by the legal heirs under Section 5 of the 1874
Act after the death of the original Watandar . They would further contend
that as the possession of the Watan lands was actually restored to the legal
heirs on 22.04.1962, the tenants were not even in possession on the
appointed date, viz., 01.01.1963. In effect, their argument is that neither a
lawful lease was in existence nor were the tenants in physical possession
on the said date. However, this argument loses sight of the fact that the
order dated 18.04.1961 had not attained finality inasmuch as the tenants
subjected it to challenge before the higher authorities and their challenge
was still pending. No doubt, the High Court erroneously referred to the
‘misconceived appeal’ filed by them as ‘revisional proceedings’ but
notwithstanding the nomenclature, the inescapable fact remains that the
challenge to the initial order dated 18.04.1961 was subsisting as on
22.04.1962, the date of delivery of possession, and such proceedings of
25
challenge concluded in favour of the tenants when their revision was
allowed, vide the order dated 03.05.1982. Merely because no stay was
granted in such proceedings and, in consequence, the tenants stood
divested of actual physical possession, it did not lend any finality to the
order impugned in those proceedings and, therefore, the purported
termination of the lease still hung in balance.
31. Further, in the light of the aforestated discussion, the argument of
the appellants that the tenants ought to have challenged the regrant order
dated 27.11.1964 is without merit. In fact, the tenants were benefited by the
said regrant order as the exercise of their right to purchase the land hinged
upon the passing of that regrant order, in terms of the proviso to Section 8
of the Abolition Act. The argument to the contrary is, therefore, rejected.
32. It appears that during the pendency of this litigation, the subject
agricultural Watan lands became part of the extended city limits of Pimpari
Chinchwad Municipal Corporation and are presently reserved for Defence
purposes (Red Zone) in the development plans sanctioned by the
Government of Maharashtra. In consequence, these lands cannot be
alienated without the prior approval of the Government of India and the
Government of Maharashtra. While so, we find that both sides have been
merrily entering into transactions with third parties to alienate/transfer the
26
subject lands. However, our decision in this case relates back to a time
when the subject lands were still agricultural in nature and use and it would
have no impact on the present position and the consequences flowing
therefrom. Further, inter se disputes, be it betwixt the appellants or betwixt
the tenants, are not the subject matter of this appeal and have not been
dealt with. All such disputes would have to be addressed independently
before the appropriate forum in accordance with law, if still permissible.
33. On the above analysis, we hold that it was not open to the
appellants to proceed against the tenants under the provisions of Sections
5, 11 and 11A of the 1874 Act after the death of Balaji Chimnaji More, the
original Watandar, in February/March, 1958. This is because the provisions
of the Tenancy Act were very much applicable to the subject lands by then
and more so, Sections 29 and 31 thereof. Therefore, the legal heirs of the
original Watandar could not have taken lawful possession of these lands
from the tenants pursuant to the order dated 18.04.1961 passed under
Sections 5, 11 and 11A of the 1874 Act. The same was rightly held to be
invalid in the revisionary order dated 03.05.1982 and that finding was
correctly held to be justified by the Bombay High Court. We also hold that
the tenancy was lawfully subsisting on 01.04.1957, i.e., Tillers’ Day, and the
tenants were entitled to exercise their right of statutory purchase of these
27
tenanted agricultural Watan lands under Section 32 of the Tenancy Act in
terms of Section 8 of the Abolition Act, after the exemption afforded by
Section 88CA ceased to exist. That right became operational on
27.11.1964, when these Watan lands were regranted to the heirs of the
original Watandar .
Viewed thus, we find no grounds made out, either on facts or in
law, to interfere with the impugned judgment dated 01.02.2005 passed by
the Bombay High Court.
The appeal is devoid of merit and is accordingly dismissed.
Pending I.A.s shall also stand dismissed.
In the circumstances, parties shall bear their own costs.
………………………..,J
(C.T. RAVIKUMAR)
………………………..,J
(SANJAY KUMAR)
March 14, 2024;
New Delhi.
28