Rangnath Vs. Daulatrao & Ors
 INSC 278 (20 December 1974)
MATHEW, KUTTYIL KURIEN BHAGWATI, P.N.
CITATION: 1975 AIR 2146 1975 SCR (3) 99 1975
SCC (1) 686
D 1977 SC 567 (23) F 1977 SC 757 (36) R 1977
SC1673 (9) R 1980 SC1255 (11) RF 1980 SC2056 (65) RF 1985 SC 781 (16) R 1986
SC2105 (17) R 1990 SC1607 (20)
Natural justice-Speaking order-State
Government while disposing a statutory appeal whether bound to give personal
hearing and to pass a speaking order.
Hyderabad Abolition of Inams and Cash grants
Whether tenancy comes to an end on service of
notice of termination-Practice-Whether a ground contrary to one taken all
throughout can be allowed to be raised at the stage of arguments-Res judicata.
The appellant was the Inamdar and respondent
no. 1 was the tenant of the suit land when the Hyderabad Abolition of Inams and
Cash Grants Act, 1954 was made applicable to the suit 'land. By virtue of the
said Abolition Act, the appellants Inam was abolished and it vested in the
Before the Inam was abolished. the appellant
terminated the tenancy of first respondent by a notice and filed a proceeding
for eviction of the tenant Under the Tenancy Act.
The said application was rejected by the Naib
Tahsildar before, the Inam was abolished. However, after the Inam was abolisbed
on an appeal the Deputy Collector allowed the appellant to resume the suit
land. The Revenue Tribunal allowed the revision of respondent No. 1 on the
ground that after the abolition and vesting of the appellant's Inam, the first
respondent as a tenant in possession acquired all the rights of an occupant
tinder the Act. During the proceedings under the Inam Abolition Act, the
appellant contended that the respondent no. 1 did not become the occupant of
the land. The Tahsildar decided that respondent no. 1 was a tenant in
possession and, therefore, acquired the rights of an occupant. The appellant
filed an appeal before the State Government under the Abolition Act against the
said decision of the Tahsildar. The State Government dismissed the said appeal
without passing a speaking order and without giving a personal hearing to the
appellant. The appellant filed a writ petition against the said order of the
State Government which was dismissed- by the High Court. The appellant filed a
writ petition against the said judgment. of the Bombay High Court. It was
contended before this Court, (i) that the State Government was not justified
'in rejecting the appellant's statutory appeal without giving him a hearing and
without passing any reasoned order. (ii) that the inam in question was a
service Inam and hence in view of the provision of Law contained in section
102A(c) of the Tenancy Act the said Act was not applicable to the land in question;
respondent no.1 could therefore never be a
tenant of the land. (iii) that the proceedings initiated by the appellant for
resumption of land under the Tenancy Act were all ultra vires and without
jurisdiction, there being no relationship of landlord and tenant between the
parties under the Tenancy Act. Jurisdiction could not be conferred by an
erroneous stand of the appellant that the first respondent was his tenant. (iv)
In any view of the matter the tenancy was terminated by service of a notice under
s. 44 and the filing of the application under s. 32(2) of the Tenancy Act,
against respondent no. 1. He was. therefore, not a tenant in possession of the
land on 1-7-1960 the date of vesting of the Inam. (v) The High Court has
committed an error in holding that its judgment in Special Petition No. 1881 of
1962 operated as res-Judicata on the question of respondent no. 1 acquiring the
eight of an occupant under section 6(1) of tile Abolition of Inams Act.
HELD : (1) It was not necessary for the State
Government to give a personal hearing to the appellant or his representative.
When in order is 100 liable to be challenged under Arts. 226 and 227 of the
Constitution, courts insist that an appeal ought to be disposed of by a
speaking order giving reasons in its support. It may not be possible in all
cases to say that a non-speaking order is bad or invalid. On the facts of the
case, the High Court rightly did not set aside the order of the State
Government and remit back the appellant's appeal on that ground. No
determination or adjudication of facts was involved. [103A-D] (2) Mere service
of the notice terminating the tenancy and filing an application for possession
does not bring an end to the tenancy. Until and unless the possession was
directed to be delivered to the land holder' the tenant continued in possession
as a tenant. The decision of the full bench of Bombay High Court-reported in 67
Bombay Law Reporter 521 doubted. [104-F-G; 105-A-B] (3) The appellant all along
contended that the Inam was not a service Inam. The said contention is contrary
to the case of the appellant throughout. [103-F] (4) The appellant cannot
contend that respondent no. 1 is not a tenant. The appellant all along treated
respondent no. 1 as a tenant. The appellant did not even assert in the
Statement of case or the additional grounds that respondent no. 1 is not a
tenant. Respondent no. 1 was in cultivating possession and was paying rent to
It could not be in any capacity other than a
tenant. [103H- 104B] (5) The High Court rightly held that issue as to whether
respondent no. 1 acquired the right as an occupant or not was barred on the
principles of res judicata in view of the decision of the High Court in the
earlier petition, [105-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 30 of 1968.
Appeal by Special Leave from the Judgment
& Order dated the 14th October, 1966 of the Bombay High Court in W.P. (Spl.
C. Appln. of 1019 of 1965).
B. N. Lokur and A. G. Ratnaparkhi, for the
S. T. Desai and R. B. Datar, for Respondent
M. N. Shroff, for Respondent No. 2.
The Judgment of the Court was delivered by
UNTWALIA, J.-In this appeal filed by special leave of this Court it would be
noticed that the appellant has endeavoured on one ground or the other to get the
15 acres and 14 Gunthas of land in Osmanabad which at one time formed part of
the erstwhile State of Hyderabad and eventually came to be a part of the State
of Maharashtra. The disputed land is comprised in Survey No. 206/B. There is no
dispute that the appellant was the Inamdar of this land. The Hyderabad
Abolition of Inams and Cash Grants Act, 1954 being Hyderabad Act No. VIII of
1955 (hereinafter called the Abolition of Inams Act,) came into force on its
publication in the gazette on the 20th July, 1955. The Abolition of Inams Act
was amended by the Hyderabad Abolition of Inams (Amendment) Act, 1956 and was
further amended by Bombay Act 64 of 1959 which came into force on 1st July,
1960. It is no longer in controversy that the Abolition of Inams Act became
applicable to the appellant's Inam by virtue of the amended provisions on
1-7-1960 as a result of which under Section 3 appellants Inam was abolished and
vested in the State. Upon its vesting, certain consequences followed which will
be adverted to hereinafter in this judgment.
101 The first round of litigation started by
the appellant against respondent no. 1 treating him as his tenant under the
Hyderabad Tenancy and Agricultural Land Act, 1950, Hyderabad Act No. XXI of
1950 (hereinafter called the Tenancy Act) was started by the appellant by
serving a notice on the first respondent under section 44 of the said Tenancy
Act. The appellant claimed in that proceeding that he bonafide required the
land for cultivating it personally and hence after service of notice purporting
to terminate the tenancy by the 31st day of December, 1958 him proceeded to
file an application on 18-3-1959 for possession of the land under section 32(2)
of the Tenancy Act. The Naib Tehsildar, Land Reforms, Osmanabad rejected the resumption
application of the appellant by his order dated 22-10-1959 holding against him
on merits that he has made out no case for termination of the tenancy. The
appellant went up in appeal which was allowed by the Deputy Collector Land
Reforms Osmanabad by his order dated 25-5-1962. The Deputy Collector allowed
the appellant to resume the disputed lands in Survey No. 206 holding in his
favour on merits.
Respondent no. 1 went up in revision. The
Revenue Tribunal allowed the revision of respondent no. 1 by its order made on
15-10-1962. It took the view accepting a new stand taken on behalf of the
tenant respondent,no. 1 that after the abolition and vesting of the appellant's
Inam the said respondent who was in possession of the land covered by the Inam
as a tenant holding from the Jnamdar had acquired all the rights of an occupant
in respect of such land under section 6 (1 )(a) of the Abolition of Inams Act.
The appellant moved the High Court of Bombay under Article 227 of the
Constitution of India in Special Civil Application No. 1881 of 1962. Agreeing
with the view of the Revenue Tribunal the Special Civil Application was
dismissed by the High Court on 26-9-1963.
The second round of fight culminating in the
present appeal started between the parties when proceedings under section 2A
which was introduced in the Abolition of Inams Act by section 6 of Bombay Act,
64 of 1959 were initiated before the Officer authorised by the State Government
to decide certain questions relating to Inams. The Tehsildar gave a notice to
respondent no. 1 for payment of price in lieu of his having acquired the right
of an occupant in the land in accordance with section 6 of the Abolition of
The appellant filed his objection and
asserted that respondent no. 1 had not become the occupant of the land under
the, provisions of law aforesaid. Various questions were raised by him. The
Deputy Collector decided the matter in the first instance by his order dated
30-11-1962. He held that the land was granted to the appellant for his service
as Mahajan; it could, therefore, be deemed to be a Watan land. He further held
that the provisions of section 6 of Abolition of Inams Act were applicable and
the date of vesting of the Inam was 1st July, 1960 and not 20th July, 1955.
Since he was not the Officer to decide the question of possession under section
6(1) of the Abolition of inams Act, he remained content by saying in his order
dated 30-11- 1962 "The land in question being the Watan land, shall be
resumed and vested in Government with effect from 1st July 1960 and the person
102 in possession of the land at the time of vesting shall be entitled to
occupancy right under section 6(1) of the Act in respect of the said
land." He finally directed that a copy of this order be sent to the Tehsildar
Osmanabad for further necessary action. The Tehsildar by his order dated 15-7-
1963 decided the matter in favour of the first respondent' and held him to be a
tenant in possession of the land on the date of vesting of the Inam and hence a
person acquiring the rights of an occupant under section 6(1). The objection of
the appellant was rejected by the Tehsildar.
The appellant filed an appeal before the
State Government under section 2A(2) of the Abolition of Inams Act from the
decision of the Tehsildar. The rejection of the appellant's appeal by the State
Government was communicated to him by a letter dated 27th November, 1964 of the
Under Secretary to the Government of Maharashtra, Revenue and Forest
Department. The appellant challenged the order of the State Government in
Special Civil Application No. 1019 of 1966 under Articles 226 and 227 of the
Constitution of India in the Bombay High Court. A Bench of the High Court
dismissed his Writ Application by its judgment and order dated 1.4-10- 1966.
The appellant presented this appeal by special leave of this Court.
Mr. B. N. Lokur, learned counsel for the
appellant made following submissions in support of the appeal
1. That the State Government was not
justified in rejecting the appellant's statutory appeal without giving him a
hearing and without passing any reasoned order.
2. That the Inam in question was a service
Inam and hence in view of the provision of law contained in section 102A(c) of
the Tenancy Act the said Act was not applicable to the land in question;
respondent no. 1 could therefore never be a tenant of the land.
3. That the proceedings initiated by the
appellant for resumption of land under the Tenancy Act were all ultra vires and
without jurisdiction, there being no relationship of landlord and tenant
between the parties under the Tenancy res-judicata on the question of
respondent no. 1 acquiring the of an occupant under section 6(1) of the
Abolition of Inam Act.
4. In any view of the matter the tenancy was
terminated by service of a notice under section 44 and the filing of the
application under section 32(2) of the Tenancy Act,, against respondent no. 1.
He, was, therefore, not a tenant in possession of the land on 1-7- 1960 the
date of vesting of the Inam.
5. The High Court has committed an error in
holding that its judgment in Special Petition No. 1881 of 1962 operated the
res-judicata on the question of respondent no. 1 acquiring the 103 In our
judgment none of the points urged on behalf of the appellant is fit to succeed.
It was not necessary for the State Government
to give a personal hearing to the appellant or his authorised representative
before disposal of his appeal. As has been repeatedly pointed out by this Court
the State Government ought to have disposed of the statutory appeal of the
appellant filed under section 2A(2) of the Abolition of Inams Act by a speaking
order. It may not be possible in all cases to say that a nonspeaking order is
bad or invalid on that account alone but when an order is liable to be
challenged under Articles 226 or 227 of the Constitution of India, Courts do
insist that an appeal of the kind filed by the appellant should be and ought to
have been disposed of by a speaking order giving some reasons in its support.
But on the facts and in the circumstances of this case the High Court did not
feet persuaded, and in our opinion rightly, to set aside the order of the State
Government and remit back the appellants appeal to them merely on that account.
No determination or adjudication of facts was involved The decision of the case
rested on the points of law. The High Court did examine the question as to
whether respondent no.
1 could not be a tenant of the appellant
because of the reason that the Inam had been held to be a Watan Inam and
consequently according to the appellant it was a service Inam. In the present
proceeding the High Court pointed out that respondent no. 1 was admittedly the
appellant's tenant. Mere service of notice under section 44 of the Tenancy Act
had not terminated the tenancy. The proceeding for resumption of the land under
the Tenancy Act finally terminated against the appellant on the ground that
respondent no. 1 could no longer be evicted as he had acquired the right of an
occupant under the Abolition of 1 On the finding recorded by the Deputy
Collector in his order dated 30-11-1962 that the appellant held the Inam as a
Watan for the purpose of this case we shall assume in his favour that it was a
service Inam and hence the provisions of the Tenancy Act were not applicable.
But such a stand is wholly contrary to the appellant's case in the previous
proceedings for resumption of land. Every where the appellant asserted that
respondent no. 1 was his tenant, so much so that in his Special Civil
Application No. 1881 of 1962 a copy of which was given to us by Mr' S. T.
Desai, learned counsel for respondent no. 1, he had stated in paragraph 7
"That the learned Member of the Tribunal has failed to apply his mind to
the provisions of Sec. 102(c) which was in force prior to the substitution of
new Section 102-A(c) of the Hyderabad Tenancy and Agricultural Lands Act. It
does not apply to the case in question as the suit land is an Inam land not a
service Inam, so the Tenancy Act is applicable to the present case." It is
not open to the appellant to change his stand and then assert that the previous
proceedings started by him for resumption of the land was ultra vires and
without jurisdiction as the Tenancy Act was not applicable to the land. The
appellant than tried to urge that respondent no. 1 could not be and was not a
tenant of the land. But this contention is also not open to the appellant. No
where it has been.
104 asserted by the appellant not even in the
statement of the case and the additional grounds filed in this Court except in
the argument put forward by his learned counsel that the Inamdar of the kind
the appellant Was, had no right to induct any tenant on the Inam land. The fact
remains that respondent no. 1 was in cultivating possession of the land in
question paying rent to the appellant since long before the vesting of the
Inam. It could not but be in his capacity as a tenant of the appellant. It is
not open to the appellant to assert that the order made by the Revenue Tribunal
or as a matter of that in his earlier Special Civil Application by the Bombay
High Court was in a proceeding in which there was inherent lack of jurisdiction
in the first authority and consequently the order was also a nullity.
There is no substance in the 4th submission
of Mr. Lokur.
Section 44(1) of the Tenancy Act reads as
44(1) "Notwithstanding anything
contained in section 6 or 19 but subject to the provisions of sub-sections (2)
to (7), landholder (not being a landholder within the meaning of Chapter IV-C)
may) after giving notice to the tenant and making an application for possession
as provided in subsection (2), terminate the tenancy of any land, if the
landholder bonafide requires the land for cultivating it personally. "
Section 32 prescribes the procedure of taking possession of the land and sub-section
(2) says "Save as otherwise provided in subsection (3A), 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 within a period of two years from the date of the commencement of the
Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957, or the date on
which the right to such possession accrued to him whichever is later."
Reading the wordings of sections 44(1) and 32(2) of the Tenancy Act it was not
possible to accept the contention put forward on behalf of the appellant that
by mere service of notice and the filing of application for possession the
tenancy had some to an end. Until and unless possession was directed to be delivered
to the landholder by the competent authority, the tenant continued in
possession and continued to be so as a tenant. A full Bench of the Bombay High
Court in Dattatraya Sadashiv Dhond v. Ganpati Raghu Gaoli(1) expressed the view
at page 529 "The manner in which a tenancy is to be terminated is,
however, laid down in section 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 tenant's possession is not
unlawful, but it is not held by him as a tenant. He has an estate 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 (1) 67
Bombay Law Reporter, 521.
105 possession as if his tenancy had not been
terminated." Although the view so expressed by the Bombay High Court may
not be quite, accurate and the better view to take may be to say that the
process of termination of tenancy started by the service of notice and the
filing of the application for possession by the landholder is not complete
until an order for possession is made by the competent authority and,
therefore, there is no termination of tenancy until an order for possession
follows in the process, the matter become beyond the pale of controversy in
view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made
in accordance with sub-section (10) of section 44 of the Act.
Sub-section (10) empowers the State
Government to provide by rules the time when the termination of tenancy will
take effect and rule 28(5) says that on the granting of the application for
possession the tenancy shall stand terminated from the commencement of the year
following the year in which the application is granted. It is, therefore, clear
that the tenancy did not come to an end by the mere service of notice and the
filing of the application by the appellant against respondent no. 1 under the
He was a tenant when the Inam of the
appellant vested in the State on the 1st of July, 1960. Indisputably, he was in
possession of the land on that date. Consequently he acquired the rights of an
occupant under section 6(1) of the Abolition of Inams Act. There was no error
committed by the High Court in deciding this question against the appellant.
The High Court was also right in holding that
the issue as to the acquiring by respondent no. 1 of the right of an occupant
was barred on the principles of res judicata in view of the previous decision
in the earlier Special Civil Application. Neither the Revenue Tribunal nor the
High Court in the earlier proceeding went into the merits of the appellant's
claim for resumption of the land. It defeated him on the ground that since
respondent no. 1 had acquired the right of an occupant on the abolition and the
vesting of the Inam the application under section 32(2) of the Tenancy Act had
got to fail. The issue directly and substantially fell for determination in the
earlier case. It was decided against the appellant and he cannot re-agitate the
very same question in this proceeding.
For the reasons stated above the appeal fails
and is dismissed with costs to Respondent No. 1 above.
P.H.P. Appeal dismissed.