Thakur Sanjeevan Rao Vs. Jaidrath
& ANR [1972] INSC 207 (6 September 1972)
DUA, I.D.
DUA, I.D.
RAY, A.N.
MATHEW, KUTTYIL KURIEN
CITATION: 1972 AIR 2582 1973 SCR (2) 103
ACT:
The Hyderabad Tenancy and Agricultural Lands
Act (21 of 1950), 28(2), 32(2) and 44 and the Hyderabad Abolition of Inams Act
(8) of 1955), s. 3(1)-Scopc of.
HEADNOTE:
The respondents were tenants under the
appellant who was the inamdar. On the allegations that they were in arrears of
rent for three consecutive years 1957 to 1960, the appellant terminated their
tenancy by giving them notice on June 18, 1960 and on August 4, 1960, filed an
aspiration under ss.
28(2) and 32(2) of the Hyderabad Tenancy and
Agricultural Lands Act, 1950.. The application was allowed and the possession
of the lands was directed to be restored to the appellant under s. 32(2). The
order was confirmed in appeal. On revision, the Maharashtra Revenue Tribunal
held :-(i) that the tenants were in arrears of rent, (ii) that all rights and
interests with respect to the inam lands had vested absolutely in the State
with effect from July 20, 1955, (iii) under s. 3(1) of the Hyderabad Abolition
of Inams Act, 1955, that the landlord was therefore disentitled to possession
of the inam lands under s, 32(2) of the Tenancy Act, and (iv) that occupancy
rights had been conferred on the respondents under the Abolition Act. The High
Court on being approached under Art. 227 of the Constitution, confirmed the
order of the Tribunal on different grounds relying upon the decision of the
Bombay High Court in DattatrayaSadashiv v. Ganapati Raghu, (67 Bom. L.R. 521).
These grounds were,t hat where, the inam was abolished with effect from July
20,1.955under the Abolition Act, the relationship of landlord and tenant
continued to subsist till July 1, 1960; but since the appellant in this case
only gave a notice to the tenants to quit and had not applied for possession
under s. 32 of the Tenancy Act before that date, the appellant-landlord was not
entitled to claim possession pursuant to that notice.
In appeal to this Court,
HELD : (1) The decision in Dattaraya
Sadashiv's case is not a binding precedent for the decision of the present
case.
That case is a direct authority only for a
situation where an application is made by a landlord under s., 44 of the
Tenancy Act. Reference to ss. 19 and 25 was made in that case by the High Court
only for the purpose of fortifying its view of s. 44 by contrasting the kinds
of cases dealt with by the Tenancy Act. Section 44 deals with a landlord's
right to culminate protected tenancy where he requires the ',and for
cultivating personally. [109F-H] (2) In the State of Maharashtra v.-Laxman
Ambaji, (A.f.R. 1971 S.C. 1859) this Court, while considering certain
provisions of the Tenancy Act observed'. that the relationship of landlord. and
tenant under the Abolition Act ceased on July 1, 1960, that if a tenant prior
to that date, surrendered possession and the inamdar had accepted such
surrender and remained in possession, he would be entitled to the grant of
occupancy 104 rights, but that if the tenant claimed to be in possession on
that date the Government would have to ascertain who was in lawful possession
or July 1, 1960 for the purpose of grant of occupancy rights. But these
decisions do not deal with the effect of the absolute vesting in the State
under s. 3 of the Abolition Act of all rights and interests with respect to
inam land with effect from July 20, 1955, and the question whether the vesting
could be said to have become ineffectual by reason of the mere continuation of
the relationship of landlord and tenant up to July 1, 1960.
Therefore, the order of the High Court should
be set aside land the case remitted to it for re-decision after considering the
distinction pointed out in Dattaraya Saclashiv's case and in the light of the
decision of this Court in Laxman Ambiji's case. [109H; 110A-D; 113B] (3)The
finding of the Tribunal that occupancy rights had beenconferred under the
Abolition Act on the respondents has also to be considered by the High Court.
[112E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1060 of 1967.
Appeal by special leave, from the judgment
and order dated September 14, 1966 of the Bombay High Court in S.C.A. No. 926
of 1965.
W. S. Barlingay and A. G. Ratnaparkhi, for
the appellant.
Respondent did not appear.
The Judgment of, the Court was delivered by
DUA, J. This is a landlord's appeal by special leave and is directed against
the judgment of a learned single Judge of the Bombay High Court, disallowing
the appellant's application under Art. 227 of the Constitution challenging the
order of the Maharashtra Revenue Tribunal dated March 26, 1965 partly allowing
the revision of Jaidrath and Vittal, tenants (respondents in this Court)
presented in the Tribunal under ss. 28(2) and 32(2) of the Hyderabad Tenancy
and Agricultural Lands Act, 21 of 1950 (hereinafter called the Act).
Jaidrath and Vittal were tenants under the
appellant (who was inamdar) and according to the appellant's allegations the
tenants were in arrears of rent for three consecutive years, 1957-, 58, 1958-59
and 1959-60. On June 18, 1960 the appellant terminated the respondent's tenancy
by giving the necessary statutory notice. On August 4, 1960 an application was
presented by the appellant to the Tehsildar, Nillam, under ss. 28(2) and 32(2)
of the Act praying for arrears of rent amounting to Rs. 1,200 and for
possession of the land on the ground that their tenancy had, been lawfully
terminated. This application was heard by the Naib Tahsildar who allowed it and
ordered the tenants to pay the rent amounting to Rs. 925.77 up to the landlord
(Inamdar) and also held that the tenancy had been terminated. As a result of
105 this conclusion the possession of the land was directed to be restored to,
the landlord under s. 32(2). This order was made on November 28, 1963. An
appeal preferred to the Deputy Collector by Jaidrath and Vittal was dismissed
on August 31, 1964. A revision under s. 91 of the Act was taken 'by the tenants
to the Maharashtra Revenue Tribunal Aurangabad which was allowed in part. The
Tribunal affirmed the concurrent findings of the Naib Tehsildar and Deputy
Collector that the tenants were in arrears of rent. In regard to the claim for
possession the Tribunal held that under s. 3(1) of the Hyderabad Abolition of
Inams Act, VIII of 1955 (hereinafter called the Abolition Act), all rights and
interests with respect to the inam lands vesting in the Inamdar had ceased, and
had 'vested absolutely in the State with effect from July 20, 1955. On this
reasoning the landlord was held disentitled to claim possession of the inam
land under s, 32(2) of the Act. The Tribunal further held on the evidence led
by the tenants that the occupancy rights had been conferred on and given to the
tenant under the provisions of the Abolition Act. The Tribunal, referring to
the facts of the case observed in its order :
"... on 7-10-1961 the tenant Jaidrath
submitted an application before the Tehsildar in which he alleged that the
lands in dispute were Inam lands and thus Inam lands vested in the State from
the date of enforcement of the Hyderabad Abolition of Inams and Cash Grants
Act, 1954 and the petitioner was declared as the occupant of the said lands
from 27th July, 1955. In view of this fact the said tenant pleaded that the
landholder was not entitled to recover possession of the said lands from the
tenants. In support of his allegation he filed a notice he received from the
Tehsil Office for depositing the price of occupancy rights. In response to the
notice it seems that he deposited Rs. 75/in Treasury Office on 30-6-1961. The
original challan has also been filed by Jaidrath. . . ." Dealing with this
part of the case, the Tribunal added a little lower down :"As regards the
second relief sought by the landholder wish to point out that both the lower
courts failed to give correct decision.
The tenant in the lower court submitted the
notice received from the Tehsil office and the challan by which the price of
occupancy tights was deposited by the tenant in the Government Treasury under
the provisions of the Hvderabad Abolition of Inams and Cash Grants Act. The
revision petitioners had raised the plea before the trial court that the 1 06
suit lands were inam lands the occupancy rights of which were given to the
tenants and hence the landholder was not entitled to recover possession of the
said lands. There was great force in this plea. The documents filed by the
tenants in the lower court clearly show that S. No. 273 and 260 situated at
Massa are inam lands. Jaidrath was given the price of occupancy rights by the
notice issued on 3-9-61. Thus we find the lands in dispute were inam lands.
Under section 3 subsection of the Hyderabad Abolition of Inams Act all rights
and interests vesting in the Inamdar in respect to the Inam lands ceased and
vested absolutely in the State.
The date of vesting is 20th July, 1955, hence
the landholder has lost his right to recover possession of the lands from the
date of the enforcement of the Hyderabad Abolition of Inam Act. It is not
correct to say that the landholder cannot be deprived of the rights accrued to
him prior to, the enforcement of the said Act. Both the lower courts have
wrongly held that the subsequent change in the law will not deprive person of
the rights which accrued to him before the new law was enforced. So far as the
claim of rent is concerned I think that the Inamdar was entitled to recover the
amount of rent. But be cannot be given possession of the lands under section
32(2) of the Hyderabad Tenancy Act when it is found that all rights pertaining
to inam vested in the Government from 20th July, 1955. Moreover the occupancy
rights have also been conferred and given to the tenant under the provisions of
the Hyderabd Abolition of Inams Act. In view of these facts the respondent was
not entitled to recover possession of the inam lands." The order of the
Deputy Collector confirming that of the Naib Tehsildar directing possession to
be given to the landlord was accordingly set aside.
The High Court on being approached under Art.
227 of the Constitution confirmed the final order of the Tribunal but on,
different grounds. According to the High Court where the inam was abolished
with effect from July 20, 1955 under the Abolition Act the relationship of
landlord and tenant continued to subsist till July 1, 1960, and the provisions
of the Act, therefore, continued to apply to the land. But as in this case the
landlord had 1 on June 18, 1960 given to the tenants only to a notice to quit
and had not applied for possession under S. 32 of the Act the relationship of
landlord and tenant continued to subsist up to July 1. 1960 when this
relationship came to an end. Thereafter the landlord was not entitled to claim
possession pursuant to the notice to quit.
107 The, learned single Judge took this view
following the Full Bench decision of the Bombay High Court in Dattatrava
Sadashiv v. Ganapati Raghu(1). This view of the High Court is challenged in the
present appeal by Dr. Barlingay, who appeared in this Court in support of the
appeal.
Unfortunately there is no appearance on
behalf of the respondents with the result that we did not have the benefit of
the arguments in support of the opposite point of view.
Before us Dr. Barlingay contended that the
High Court was in, error in following the Full Bench decision in the case of
Dattatrava, Sadashiv (supra) because that case was concerned with the
landlord's claim for possession under s. 44(2) of the Act, which is not the
case before us. Section 44(2) of the, Act, according to Dr. Barlingay's
submission, deals with a different situation and that section is inapplicable
to the case in hand. The present case, according to the learned advocate, has
to be, decided in the light of ss. 1928 and 32 and not s. 44(2) of the Act.
According to, s. 19(2) the landholder is
entitled to terminate a tenancy on the ground inter alia that the tenant had
failed to pay in any year rent for that year, within fifteen days from the day
fixed under the Land Revenue Act for the payment of the last installment of
land revenue due for the land concerned in that year. Section 28 which provides
for relief against termination of tenancy for nonpayment of rent lays down that
where a tenancy of any land held' by a tenant is terminated for non-payment of
rent and the landholder files any proceeding to eject the tenant, the Tehsildar
shall call upon the tenant to tender to the landholder the rent in arrears
together with the cost of proceeding within ninety days from the date of the
order and if the tenant complies with such order, pass ,in order directing that
the tenancy has not been terminated, and thereupon the tenant shall hold the
land as if the tenancy had' not been terminated. According to the proviso to
subs. (1), however. this relief against termination is not admissible to a
tenant whose tenancy has been terminated for non-payment of rent if he has
failed for any three years to pay rent within the period specified in s.
19(2)(i).
Section 32 which prescribes the procedure,
for taking possession lays down that no landholder shall obtain possession of
any land etc., held by a tenant except under an order as the Tahsildar for
which he shall apply in the prescribed form.
Dr. Barlingay pointed out by referring us to
the Full Bench decision of the Bombay High Court in Dattatraya Sadashiv (supra
that in that case the landlord's claim against the tenant was governed by s.
44(2) of the Act. Section 44 deals with a landlord's right to terminate
protected tenancy where he requires if for ctiltivating (1) 67 Bom L.R. 521.
1 08 it personally. In such a case, according
to the submission, the tenancy is terminated only by virtue of an order of the
revenue authorities. Our attention was invited to the following observation of
the Bombay High Court in Dattatraya Sadashiv (supra) In regard to the second
question, sub-s. (1) of 44 ,of the Tenancy Act provides that a landholder may
after giving notice to the tenant and making an application for possession as
provided in sub-s. (2) terminate the tenancy of any land, if the landholder
bona fide requires the land for cultivating it personally. Sub,section (2)
states that the notice required to be given under sub-s. (1) shall be in
writing and shall state the purpose for which the landholder requires the land
and that an application for possession under s. 32 shall be made to the
Tehsildar.
Two things are, therefore, necessary for
terminating a tenancy under sub-s. ( 1 ) :
(1) a notice must be given to the tenant
starting that the landholder requires the land for cultivating it personally,
and (2) the landholder must make an application for possession to the Tehsildar
under s. 32 of the Act.
If these requirements are complied with, the
tenancy stands terminated. Sub-section (2) of section 32 provides that no
landholder shall obtain possession of any land or dwelling house held by a
tenant except under an order of the Tehsildar, for which he shall apply in the
prescribed form. A tenant is, therefore, entitled to continue in possession of
the land until the Tehsildar has made an order for possession being restored to
the landholder.
It has, therefore, been urged that he continues
to be a tenant until the Tehsildar has made his order. The manner in which a
tenancy is to be terminated is, however laid down in s. 44. Under this section
the tenancy terminates when after giving the requisite notice the landholder
makes an application for possession to the Tehsildar. Thereafter the tenants's
possession 'is not unlawful, but it is not held by him as a tenant. He has an
eatste in possession, which he will lose if the Tehsildar makes an order in
favour of the landholder. If, however, the Tehsildar rejects the application of
the landholder, the termination of tenancy by the landholder will become
ineffective. The tenancy will revive and the tenant will continue in possession
as if his tenancy had not been terminated." 109 After so observing the
High Court compared the case of termination of tenancy under s. 44 of the Act
with the case governed by ss. 19 and 28. In its view, according to s. 19 which
provides. or termination of a tenancy inter alia on the ground of failure to
bay rent within the prescribed time, the tenancy shall not be terminated unless
the landholder gives six months' notice in writing intimating his intention to
terminate the tenancy and also the ground of such termination. The High Court
then referred to 28 (1) and observed :
"The opening words of this sub-section
make it clear that a proceeding to eject a tenant can be instituted after the
tenancy has been terminated, that is to say, an application for possession can
be made to the Tehsildar Linder s. 32 only after the tenancy has been
terminated. A tenancy is, therefore, terminated by the notice given under
sub-s. (2) of s. 19 and an order of the Tehsildar is not required for this
purpose. In fact until the tenancy is terminated, the landholder does not get a
right to possession of the land.
The words " as if the tenancy had not
been terminated' at the end of the subsection also imply that the tenancy had
previously been terminated. Section 28, therefore, also shows that a tenancy is
terminated by giving a notice to the tenant and that it does not continue until
the Tehsildar has made an order for possession of the land." Relying on
these observations Dr. Barlingay submitted that the decision in Dattatraya
Sadashiv (supra) has been wrongly considered as an authority for the case in
hand.
prima facie Dr. Barlingay's submission seems
to possess merit and the High Court appears to us to be not quite right in
relying on Dattatraya Sadashiv (supra) as a binding precedent for the present
case. Unfortunately, as already observed, we did not have the benefit of the.
opposite view, or of the arguments supporting the view taken by the Tribunal or
supporting the conclusion of the High Court on grounds other than those stead
by it in the impugned judgment, because the respondents were unrepresented in
this Court and this appeal was heard ex parte. Dattatraya Sadashiv (supra) no
doubt is a direct authority only for a case where an application is made by a
landlord under s. 44 of the Act and the reference to ss. 19 and 28 was made
apparenty for the purpose of fortifying its view of s. 44 by contrasting the
two kinds of cases dealt with by the Act.
Incidentlly we may point out that in the
State of Maharashtra v. Laxman Ambaji(1) this Court, while considering certain
pro-(1) A.I.R.1971 S.C. 1859.
110 visions of the Act, observed that the
relationship of landlord and tenant under the Abolition Act ceased on July 1,
1960 and if a tenant had prior to that date surrendered possession and the
Inamdar had accepted such surrender and had remained in possession on July 1,
1960, he would be entitled to the grant of occupancy rights. If, however, the
tenant claimed to be in possession on that date the Government will have to
ascertain as to who was' in lawful possession on July 1, 1960 for the purpose
of grant of occupancy rights. In the course of the judgment reference was made
to the Full Bench decision in Dattatraya Sadashiv (supra) ,and that decision
was approved on the point that the relationship of landlord and tenant
continued up to July 1, 1960. These decisions do not deal with the effect of
the absolute vesting in the State of all rights and interests with respect to
the inam lands with effect from July 20, 1955. Again, can it be said that this
vesting became ineffectual by reason of mere continuation of the relationship
of landlord and tenant, up to July 1, 1960 ? Under S. 1(3) of the Abolition Act
which had been published in the Hyderabad Gazette Extraordinary on July 20,
1955 inter alia, S. 3, except cls. (d), (g), (h) and (1) of subs. (2) of S. 3
came into force on July 20, 1955. Section 3 provides "3. Abolition and
vesting of inams and the consequences thereof (1)Notwithstanding anything to
the contrary contained in any usage, settlement, contract, grant, sanad, order
or other instrument, Act, regulation, rules or order having the force of law
and notwithstanding any judgment, decree or order of a Civil. Revenue or Atiyat
Court, and with effect from the date of vesting, all inams to which this Act is
made applicable under sub-section (2) of section 1 of this Act shall be deemed
to have been abolished and shall rest in the State.
(2)Save as expressly provided by or under the
provisions of this Act and with effect from the date of vesting, the following
consequences shall ensue,. namely (a)the provisions of the Land Revenue Act,
1317 Fasli relating to inams, and the provisions of the Hyderabad Atiyat
Enquiries Act, 1952 and other enactments, rules, regulations and circulars in
force in respect of Atiyat grants shall. to the extent, they are repugnant, to
the provisions of this Act, not apply and 111 the provisions of the Land
Revenue Act, 1317 Fasli relating to unalienated lands for purposes of land
revenue, shall apply to the said inams;
(b)ail rights, title and interest vesting in
the inamdar kabiz-e-kadim, permanent tenant, protected tenant and non-protected
tenant in respect of the inam and, other than the interests expressly saved by
or under provisions of this Act and including those in all communal lands,
cultivated and uncultivated lands (whether assessed or not), waste lands,
pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks
and irrigation works, fisheries and ferries, shall cease and be vested
absolutely in the State free from all encumberances;
(c)all such inam lands shall be liable to
payment of land revenue;
(,a) all rents and land revenue inclulding
cesses and royalties, accruing in respect of such inam lands, on or after the
date of vesting, shall be payable to the State and not to the inamdar, and any
payment made in contravention of this clause shall not be valid;
(e)all arrears of revenue, whether 'as judi,
quitrent or other cess, remaining lawfully due on the date of vesting in
respect of any such inam shall, after such date, continue to be recoverable
from the inamdar by whom they were payable and may, without prejudice thereof
from the compensation amount payable to him to any other mode of recovery be
realised by deduction under this Act;
(f)no such inam shall be liable to attachment
or sale in execution of any decree or other process of any Court and any
attachment existing on the date of vesting or any order for attachment passed
before such date in respect of such inam, shall, subject to the provisions of
section 73 of the Transfer of Property Act, 1882, cease to be in force;
(g)the inamdar and any other person whose
rights have vested in the State under clause (b) shall be entitled only to
compensation from the Government as provided for in this Act;
112 (h)the relationship with regard to inam
land as between the inamdar and kabiz-ekadim, permanent tenant, protected
tenant or non-protected tenant shall be extinguished;
(i)the inamdar, kabiz-e-kadim, permanent
tenant, protected tenant, and a non-protected tenant of inam lands, and any
person holding under them and a holder of an inam, shall as against the
Government, be entitled only to such rights and privileges and be subject to such
conditions as are provided for under this Act and any other rights and
privileges which may have accrued to any of them in the inam before the date of
vesting against the inamdar shall cease and shall not be enforceable against
the Government or the inamdar.
(3) Nothing contained in sub-sections(1) and
(2)shall operate as bar to the recovery by the inamdar of any sum which becomes
due to him before the date of vesting by virtue of his rights as inamdar and
any such sum shall be recoverable by him by any process of law, which, but for
this Act, would be available to him." We have reproduced this section for
showing that the effect of these provisions on 'the facts of the present case
would have to be considered before granting the appellant's prayer for possession.
The other question which also requires consideration is the respondent's
contention upheld by the Tribunal that the occupancy rights under the Abolition
Act had already been conferred on the tenants. The entire record not being
before us and the tenants not being represented in this Court we are unable to
deal with this important point.
After considering all the implications of the
appellant's arguments as suggested by Dr. Barlingay we consider it proper to
set aside the order of the High Court and send the case back to it for a
re-decision after considering the distinction pointed out by the Full Bench of
the Bombay High Court in Dattatraya Sadashiv (Supra) and in the light of this
Court's decision in Laxman Ambaji (supra). As just pointed out, we did not have
the advantage even of going through the relevant record of the case as it was
not got printed by the appellant. In the circumstances, this judgment should
not be construed to contain any expression of opinion either way on the merits
of the controversy exhaustively discussed by the Tribunal in its order dated
March 26, 1965.
113 Our decision is limited only to the point
that Dattatraya Sadashiv (supra) is not a binding precedent for the decision of
the case in hand.
The order of the High Court is accordingly
quashed and the case remitted back to the High Court for a fresh decision of
the application under Art. 227 of the Constitution in accordance with law and
in the light of the observations made above. As there was no representation on
behalf of the respondents there will be no order as to costs.
V.P.S.
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