Madharao Rajeshwar Deshpande Vs.
Shanker Singh & Ors  INSC 37 (24 February 1970)
24/02/1970 GROVER, A.N.
CITATION: 1971 AIR 1659 1970 SCR (3) 809
Bombay Tenancy and Agricultural Land
(Vidharbha and Kutch Area) Act 99 of 1958 as amended by Act 2 of 1962, ss. 41,
42, 43 and 46--Scope of.
The appellant was the owner of certain land
and the first respondent was the protected lessee. In 1963, the appellant filed
a petition for possession of the land on the ground that the first respondent
failed to exercise his right of purchase under s. ' 41(1) of the Bombay Tenancy
and Agricultural Land (Vidharbha and Kutch Area) Act, 1958. The authorities
under the Act held that the tenant had become a statutory owner from April 1,
1961, under s. 46(1) and dismissed the petition. In the High Court the
appellant raised for the first time, the contention that under s. 42(c) of the
Act the appellant should have been left an area not less than one family
holding (that is about 26 -acres), that s, 46(1) was applicable only when the
condition in s. 42(c) was satisfied, that under s. 43(14A), which was
introduced into the Act by Act 2 of 1962. the first respondent should take
steps to exercise his right of purchase. and since the first respondent did not
do so, he must be deemed to have surrendered the land to the appellant under s.
43(14A). The High Court did not accept the contention.
In appeal to this Court,
HELD: (1) The appellant was not entitled to
raise any contention based on s. 42(c) as no foundation was laid for doing so
in the pleadings or at any prior state till the matter reached the High Court.
[814 A-B] (2) The operation of s. 46(1) was not affected by the subsequent
insertion of sub-s. 14A in s. 43, as it did not have any retrospective
operation. Therefore, the first respondent had become a statutory owner of the
land in his tenancy under s. 46(1), on April 1, 1961, even though he did not
take any steps to purchase that land from the appellant.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2393 of 1966.
Appeal by special leave from the judgment and
order dated March 1, 1966 of the Bombay High Court, Nagpur Bench in Special
Civil Application No. 190 of 1965.
G. L. Sanghi and A. G. Ratnaparkhi, for the
D. V. Patel, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment of the Bombay
High Court dismissing a petition filed by the appellant under Art. 227 of the
L 10 Sup CI(NP)70-7 810 The dispute relates
to survey No. 284 having an area of 11 acres and 6 gunthas in Mouza Paras,
Taluk Balapur, District Akola. The appellant is the owner of this field while
respondent no. 1 is the protected lessee. The case is governed by the Bombay
Tenancy and Agricultural Land Act (Vidharbha & Kutch area) Act 99 of 1958
which came into force on December 30, 1958, hereinafter called "the
In, August 1963 the appellant filed an
application before the Tahsildar under ss. 43(14A) and 36(2) of the Act for
possession of the aforesaid field on the ground that respondent No. 1 had
failed to exercise his right of purchase in respect of that field under the
provisions of the Act. He must, therefore, be deemed to have surrendered the
same to the appellant. The Tahsildar sustained the defence of respondent No. I
that he had become an owner of the said field on April 1, 1961 under s. 46 of
the Act and dismissed the application. The order of the Tahsildar was confirmed
by the Deputy Collector (Tenancy Appeals) and the Maharashtra Revenue Tribunal
t0 whom the matter was taken in appeal and revision respectively. It may be
mentioned that originally the appellant had. filed applications against three
of his tenants including respondent No. and the tribunal dismissed by one order
all the three revision petition preferred against the orders made in the three
cases. The appellant, however, filed a petition under Art.
227 of the Constitution challenging the order
made in the case of respondent No. alone.
The Act as originally enacted was amended by
Act 2 of 1962 which came into force on March 1, 1962. Chapter III related to
termination of tenancies by landlords and special rights of tenants. Sections
38, 39 and 39A gave rights to different categories of landlords to terminate
the tenancies of their tenants for bona fide personal cultivation. A ceiling
was fixed with regard to the area of which possession could be claimed as also
the minimum area of land which must be left with the tenant. The tenants were given
the right to purchase land in the second part of Chapter III. Section 41 (1)
provided that subject to the provisions of ss. 42 to 44 a tenant other than an
occupancy tenant would be entitled to purchase from the landlord the land held
by him as a tenant and cultivated by him personally.
In case of a landlord who was- under some
kind of disability, namely, if the landlord was a minor or a widow or a serving
member of the armed forces or a person subject to physical or mental disability
the right to purchase land of such landlord accrued to the tenant after the
expiry of two years from a date prescribed in the case of each category of such
landlord. Section 42 as it stood on April 1, 1961 was as follows:
"Extent of land which tenant may
purchase under section 41.-The right of a tenant under s. 41 to purchase 811
from his landlord the land held by him as a tenant shall be subject to the
following conditions, namely (a) if the tenant does not hold and cultivate
personally any land, as a tenure- holder, the purchase of the land by him shall
be limited to the extent of three family holdings;
(b) if the tenant holds and cultivates
personally any land as a tenure-holder the purchase of the land by him shall be
limited to such area as will be sufficient to make up the area of the land held
by him as a tenure holder to the extent of three family holdings;
(c) the extent of the land remaining with the
landlord after the purchase of the land by the tenant whether to cultivate
personal or otherwise shall not be less than one family holding".
Clause (c) was deleted by Act 2 of 1962 which
came into force on March 1, 1962. Section 43 prescribes the procedure which was
to. be followed by a tenant in the matter of purchase of the holding. Section
46(1) made a categorical provision that notwithstanding anything in Chapter III
or any law for the time being in force or any custom, usage, decree, contract
or grant to the contrary the ownership of all lands held by tenants which they
were entitled to purchase from their landlord under any of the provisions of
Chapter III was to stand transferred to and vest in such tenants with effect
from April 1, 1961 and from such date the tenants were to be deemed to be the
full -owners of the lands. The first proviso contained provisions relating to
the tenants who were under a disability and the second proviso laid down that
where any proceeding under ss. 19, 20, 21, 36 or 38 was pending on the date
specified in sub-s. (1) in respect of any land the transfer of ownership of
such land was to take effect on the date on which the proceeding was finally
decided and if the tenant retained possession of the land in accordance with
the decision in such proceedings. Under sub-s. (2) the tenant continued to be
liable t0 pay to the landlord the rent of the land the ownership of which stood
transferred to him until the amount of the purchase price payable by him to the
landlord had been determined under s. 48.
Certain amendments which were made by Act 2
of 1962 may be noticed. Sub-section 14A was inserted in S. 43 which was in
"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-sect ions (1) and (2) of section
21 812 and Chapter VII shall apply to such land as if the land was surrendered
by the tenant under section 20".
Section 49A provided for transfer of
ownership of lands to the tenants with effect from first day of April. 1963
where the land had already not been transferred by operation of S. 46 or where
the tenant had not purchased it under S. 41 or S. 50.
Before the Maharashtra Revenue Tribunal the
position taken up on behalf of the appellant was that the tenant had failed to
,exercise his right of purchase in respect of the field in his possession and
therefore he should be deemed to have surrendered the same to the appellant by
virtue of the provisions of S. 43 (14A) of, the Act. The tribunal went into the
scheme of the Act and also considered the Ceiling on Holdings Act which was in
force in the Vidarbha Region.
After referring to the relevant provisions of
the Act it was observed that the final stage for transfer of ownership of land
to the tenant was provided by ss. 46 and 49A. The effect of the Tenancy Act and
the Ceiling on the Holdings' Act, according to the 'Tribunal, was that no
person was entitled to hold an area in excess of three family holdings. Under
the Act the maximum area which he could have resumed would have been three
family holdings and that also if he could prove that he bona fide required it
for personal cultivation and was mainly dependent on the income of that land
for his maintenance. The tenant was given the right to purchase the land in his
tenancy from the landlord in accordance with S. 43. If he did not take
step.& to acquire the same he still became a statutory owner of that land
by virtue of S. 46 with effect from April 1, 1961.
Therefore even if the tenant did not apply for
purchase of land held by him he became an owner with effect from April 1, 1961
subject to any other conditions as were laid down in the provisions of the Act.
This vesting of ownership in the tenant was not affected by subsequent
enactment of sub-s.
(14-A) by Act 2 of 1962 which did not have
Thus, according to the tribunal, even if
respondent No. 1 did not apply under the relevant provisions of the Act for
purchasing the land comprising his tenancy he became an owner thereof by virtue
of the provisions of S. 46(1) and no tenancy rights were left which could be
deemed to have been surrendered under s. 14A -which came into existence after
April 1, 1961. Although the provisions of S. 42(c), as they stood before the
amendment effected by Act 2 of 1962, were not pressed at any prior stage a
contention was raised before the High, Court that in accordance therewith the
ap- pellant should have been left an area not less than one family holding on
independent calculation with respect to the land held by -each tenant. The High
Court repelled this contention by saying that it was not possible to accept
such a construction of S. 42(c).
813 As there was no proceeding pending for
termination of the tenancy of respondent No. 1 the conclusion of the tribunal
that respondent No, I had become a statutory owner on April 1, 1961 was upheld.
Before us an attempt was made on behalf of
the appellant to reiterate the contention based on the provisions of s. 42(c)
as it existed before the amendment made by Act 2 of 1962.
It was urged that one of the most important
conditions of the right to purchase was that the extent of the land remaining
with the landlord after the purchase by the tenant (whether to cultivate
personally or otherwise) shall not be less than one family holding. On December
30, 1958 the appellant had no land whatever with him in his possession.
He was, therefore, entitled to retain an area
to the extent of one family holding which came to 26 acres. By virtue of the
provisions of s. -42(c) respondent No. I was not entitled to purchase the
entire land comprising his tenancy as under s. 46(1) the ownership of land
stood transferred to the tenant only if he was entitled to purchase from the
landlord such land. As this condition was not fulfilled in the present case
owing to the provisions of S. 42(c) it followed that on April 1, 1961 the
ownership of the land in question was not transferred to respondent No. I under
s. 46(1). This situation continued upto March 1, 1962 when the amending Act
came into force. Sub-section (14-A) of s. 43 was one of the new provisions
inserted by the Amending Act.
Respondent No. 1, could, therefore, exercise
his right of purchase only under s. 41 read with s. 43(14-A). As he failed to
exercise his right under those provisions the entire land in his tenancy must
be deemed to have been surrendered to the landlord, namely, the appellant
before April 1, 1963 which was the relevant date for the purpose of the
operation of s. 49-A.
We are unable to accept any of the
contentions raised on behalf of the appellant. So far as the effect of s.
42(c), as it stood before its deletion by the amending Act is concerned, it was
neither referred to nor relied upon before any of the revenue authorities
including the Maharashtra Revenue Tribunal. The application which was filed by
the appellant was not founded on any facts or pleas relevant to s. 42 (c). The
contention as raised leads to unusual and strange results. If the appellant was
entitled to an area of 26 acres it is difficult to see how he could choose only
respondent No. I and leave out the other tenants for the purpose of retaining
land not less than one family holding.
It is significant that the appellant had
filed applications on similar lines against two other tenants also. After the
decision of the tribunal had been given he did not pursue the matter further
which means-that he abandoned his claim with regard to the lands in their
tenancies. Respondent No. , I has a holding with an area of little over 11
acres. It is incomprehensible how the appellant could seek to satisfy the
requirements of s. 8 14 42(c) by demanding the entire area from respondent No.
I alone. We, however, do not wish to express any final opinion on the scope and
ambit of s. 42(c) because we are satisfied that the appellant was not entitled
to raise any Contention based on the aforesaid provision as no foundation was
laid for doing so in the pleadings or at any prior stage except before the High
Court. We concur in the view of the tribunal that respondent No. I became a
statutory owner of the land in his tenancy by Virtue of s. 46(1) of the Act
with effect from April 1, 1961 even though he did not take steps to purchase
that land from the appellant under s. 43.
The -operation of S. 46(1) could not be
affected by the subsequent insertion of sub-s. (14-A) in s. 43 Which did not
have retrospective operation.
The appeal therefore fails and it is
dismissed. But in the circumstances there will be no order as to costs.
V.P.S. Appeal dismissed.