Sevaliram
Gotiram Teli Vs. Madhukar Yeshwant Patankar & Ors [1996] INSC 1455 (19 November 1996)
N.P.
Singh, S.B. Majmudar S.B. Majmudar, J.
ACT:
HEAD NOTE:
In
this appeal the question that falls for our consideration is as to whether
heirs of a tenant governed by the provisions of Bombay Tenancy and Agricultural
Lands Act, 1948 (hereinafter referred to as `the Act') can claim restoration of
possession of the land under the provision of Section 32(1B) of the Act when
such proceedings were initiated suomotu by the Mamlatdar concerned. The
Additional Mamlatdar, the Deputy Collector and the Maharashtra Revenue Tribunal
held in favor of the heirs of the tenant and ordered restoration of possession
of the lands from the respondent-landlords. The High Court of Bombay by the
judgment under appeal took a contrary view and held that such proceedings are
maintainable only for the tenant concerned and not for his heirs. It is this
view of the Bombay High Court which brought in challenge in the present
proceedings by the heirs of the erstwhile tenant.
A few
relevant facts may be noted at the outset. One Savaliram Gotiram Teli was the
tenant of three agricultural lands being Survey Nos. 88, 89 and 90 situated at
Village Trimbak in Nasik Taluka in Maharashtra State. Respondents were the landlords of
the said lands. On the appointed day, that is, 15th June 1955 the said tenant was in occupation of these lands. He was
dispossessed by the landlords prior to 1st April 1957 otherwise than under an appropriate
order under Section 29 of the Act. After dispossessing the tenant the
respondent-landlords remained in possession of the said lands till 31st July 1969. The Additional Mamlatdar
instituted suo motu proceedings under Section 32 (1B) of the Act of the ground
that the tenant was in possession of the lands on the appointed day and he was
dispossessed prior to the tillers day, that is, 1st April 1957 by the landlords
without following due procedure of law and the lands in question were in
possession of the landlords of their successors-in-interest on 31st July 1969
and, therefore, the respondents were liable to restore the possession of the
lands to the heirs of the tenant even though the tenant in the meantime had
died in 1959. As all the requisite condition for applicability of Section
32(1B) of the Act were found to have been satisfied the Special Additional Tahsildar,
Nasik by his order dated 20th August 1971 directed the respondent-landlords
to restore the lands to the heirs of the tenant under Section 32 (1B) of the
Act for personal cultivation. The said order was challenged by the landlords by
filing Tenancy Appeal which came to be dismissed by Leave Reserve Deputy
Collector, Nasik on 10th January 1972. Respondent-landlords carried the matter in revision before
the Maharashtra Revenue Tribunal under Section 70 of the Act. That Revision
Application was also dismissed. It is thereafter, that the respondents,
aggrieved by the order of the Revenue Tribunal dated 2nd March 1973, carried the matter in appeal under
Article 227 of the Constitution of India to the High Court of Bombay.
The
only question argued before the High Court by the respondents was as to whether
the proceedings under Section 32 (1B) of the Act for the benefit of the heirs
of the original tenant could be maintained. The learned Single Judge of the
High Court by his order dated 1st March 1978 persuaded himself to hold that
such proceedings were not maintainable for the heirs of the erstwhile tenant
and only the tenant could have initiated such proceeding and as he had died in
1959 and as during his lifetime he had taken no steps to get restoration of
possession of the lands within two years from the date of dispossession as per
Section 29 of the Act his tenancy rights had got extinguished and could not be
inherited by the appellant-heirs and consequently the proceedings under Section
32 (1B) of the Act were liable to the quashed on that ground. It is the
aforesaid order of the learned Single Judge of the High Court which is brought
in challenge in the present proceedings as noted earlier.
At the
time when this appeal was finally heard before us it was brought to out notice
by learned counsel for the appellants that the aforesaid decision of the
learned Single Judge which was reported in AIR 1979 Bombay 117 has been overruled
by a Division Bench of the High Court of Bombay in the case of Pandharinath Sakharam
Chavan v. Bhagwan Ramu Kate & Ors. AIR 1 Bombay 203 and it has been held by the Division Bench of the High
Court that such proceedings under Section 32 (1B) of the Act were maintainable
even at the instance of the heirs of the original deceased tenant if the
statutory conditions for applicability of the Section were complied with.
Learned
counsel for the respondents on the other hand submitted that though the Division
Bench of the High Court has overruled this judgment so far as these proceedings
are concerned this Court may uphold the view of the learned Single Judge as the
same is well sustained on the scheme of the Act.
Having
given our anxious consideration to the rival contentions we find that on the
express language of Section 32 (1B) of the Act the view taken by the learned
Single Judge of the High Court in the impugned Judgment cannot be sustained.
Section 32 (1B) of the Act reads as under:
"32
(1B). Where a tenant who was in possession on the appointed day and who on
account of his being dispossessed before the 1st day of April 1957 otherwise
than in the manner and by an order of the Tahsildar as provided in section 29,
is not in possession of the land on the said date and the land is in the
possession of the landlord or his successor-in- interest on the 31st day of
July 1969 and the land is not put to a non-agriculture use on or before the
last mentioned date, then, the Tahsildar shall, notwithstanding anything
contained in the said section 29, either suo motu or on the application of the
tenant, hold an inquiry and direct that such land shall be taken from the
possession of the landlord or, as the case may be, his successor-in- interest,
and shall be restored to the tenant; and thereafter, the provisions of this
section and sections 32-A t 32-R (both inclusive) shall, in so far as they may
be applicable, apply thereto, subject to the modification that the tenant shall
be deemed to have purchased the land on the date on which the land is restored
to him:
Provided
that, the tenant shall be entitled to restoration of the land under this
sub-section only if he undertakes to cultivate the land personally and of so
much thereof as together with the other land held by him as owner or tenant
shall not exceed the ceiling area.
Explanation.- In this sub-section
"successor-in-interest" means a person who acquires the interest by
testamentary disposition or devolution on death." A mere look at the said
provision shows that for applicability of the said provision the following
conditions must be satisfied:
(1)
The tenant governed by the Act must be in possession on the appointed day, that
is, 15th June 1955.
(2) He
should have been dispossessed before the tillers day, that is, 1st April 1957 otherwise than in the manner and by
an order of the Tahsildar as provided in Section 29.
(3)
The said land must be in possession of the landlord or his
successor-in-interest on 31st day of July 1969.
(4)
The land should not have been put to non-agricultural use by the landlord on or
before the 31st day of July 1969.
Once
the aforesaid four conditions are satisfied a statutory duty is cast on the Tahsildar
notwithstanding anything contained in Section 29 either suo motu or on application
of the tenant to hold an inquiry and direct that such land shall be taken from
the possession of the landlord or his successor-in-interest and shall be
restored to the tenant. Once that happens the provisions of Section 32-A to
32-R of the Act will get attracted and the concerned tenant would be declared
deemed purchaser of the land on the day on which the land is restored to him.
However the restoration order will be subject to the undertaking of the tenant
to cultivate the land personally. There is no dispute in the present case that
all the aforesaid conditions are satisfied by the appellants. The High Court
also has not taken a contrary view on the applicability of these conditions,
namely, that the original tenant Savaliram Gotiram Teli was in possession of
the lands of 15th June
1955, the appointed
day. That he was dispossessed before 1st April 1957 by the respondent-landlords without
following the procedure of Section 29. That thereafter the lands remained in
possession of the respondents upto 31st July 1969 and they did not put the lands to
non-agricultural use. Once these conditions were satisfied in suo motu
proceedings taken out by the Tahsildar it was the statutory obligation of the Tahsildar
to restore the lands to the tenant. Unfortunately by the time these proceedings
could be initiated and Section 32 (1B) could operate the tenant had died in
1959. It is only on this ground that the High Court took the view that the
tenant's heirs cannot get the benefit of Section 32 (1B) of the Act. The learned
Single Judge in order to come to this conclusion placed reliance on two
circumstances, (i) the tenant in his lifetime after dispossession had not taken
steps to get restoration of possession under Section 29 of the Act within two
years of dispossession; and (ii) the Section nowhere expressly contemplated
that the land could be restored to successor-in-interest of the tenant when the
Section itself provided that the land could be in possession of landlord or his
successor-in-interest meaning thereby proceedings could be initiated even
against the successor- in-interest of the landlord but the Section nowhere
provided a similar right in favour of the successor-in-interest of the tenant.
In our view with respect both these grounds are unsustainable for non-suiting
the appellants. So far as the first ground is concerned it has to be kept in
view that Section 32 (1B) of the Act itself operates on its own and includes
within it the non obstante clause meaning thereby overriding the provision of
Section 29 of the Act. This clearly means that whether the erstwhile tenant had
followed the provisions of Section 29 or not for getting restoration of
possession of the land from the landlord within two years under Section 29 was
irrelevant as a further locus penitential is given to such tenants by the
express language of Section 32 (1B) of the Act and the said Section would
operate independently of and de hors section 29.
Unfortunately
the effect in this non obstante clause is missed by the learned Single Judge of
the High Court in the impugned judgment. The Division Bench in the case of Pandharinath
(supra) has rightly pointed out the said flaw in the judgment of the learned
Single Judge. Once Section 32 (1B) operates on its own independently of
provisions of Section 29 of the Act the result becomes obvious, Section 40 of
the Act then squarely gets attracted. Section 40 reads thus:- "S.40. (1)
Where a tenant (other than a permanent tenant) dies, the landlord shall be
deemed to have continued the tenancy on the same terms and conditions on which
such tenant was holding it at the time of his death, to such heir or heirs of
the deceased tenant as maya be willing to continue the tenancy.
(2)
Where the tenancy is inherited by heirs other than the widow of the deceased
tenant, such widow shall have a charge for maintenance on the profits of such
land." The said Section provides for a deemed fiction about transmission
of existing tenancy rights in favour of the heirs. Thus, by the time the tenant
died in 1959, as his tenancy rights had not got extinguished by an appropriate
proceedings under Section 29 at the instance of the landlord, those tenancy
rights survived and could be transmitted under the statutory provisions of
Section 40 in favour of the heirs of the erstwhile tenant who were obviously
willing to continue as tenants. Consequently the appellants themselves got
clothed with the rights of statutory tenants by operation of Section 40 of the
Act. The result was that when Section 32 (1B) operated they fully satisfied the
requirement of being statutory tenants of the land in question having the same
terms and conditions of tenancy qua the respondent landlords and hence could
claim their right of restoration of possession of the tenanted lands against
the respondent-landlords on satisfaction of the required conditions of Section
32 (1B) of the Act.
The
second ground which appealed to the learned Single Judge is also unsustainable
for the simple reason that Section 32 (1B) of the Act was required to include a
provision regarding restoration of possession by the successor-in-interest of
landlords for the simple reason that the landlord might have died in the
meantime and his interest in the land might have been inherited by his
successor-in-interest by way of testamentary succession or intestate succession
and it could be urged by the successors-in-interest that they were not the
landlords who had illegally dispossessed the tenant. In order to avoid such a
contingency and to rope in such successors-in- interest who were claiming
through the erstwhile landlord and who were in possession of land only because
of the illegal dispossession of the tenant by their predecessor-in- interest,
the Explanation had to be enacted to make his successor-in-interest answerable
to the claim of erstwhile tenant under the said Section. Such is not the
requirement so far as the tenant's heirs are concerned as the tenant being the
aggrieved party can himself support the proceedings for restoration of
possession or if he dies in the meantime and his tenancy rights get transmitted
to his heirs under Section 40 of the Act, his heirs in their own right would
become statutory tenants and can invoke the provisions of the Section against
the landlord or his successor-in-interest. As there was no provision like
Section 40 for transmission of landlord's right on his death, Explanation to
Section 32 (1B) was required to be enacted for making the said provision fully
operative in such contingencies. The learned Single Judge took the view that
Section 40 was out of picture as the tenancy rights of the erstwhile tenant had
got extinguished on account of non- compliance of Section 29 of the Act. Once
that reasoning gets displaced by the express provision of non obstante clause
in the Section excluding the operation of Section 29 for the applicability of
Section 32 (1B), Section 40 gets attracted. Hence the non-mentioning of
successor-in-interest of the tenant in the Section pales into insignificance as
seen above. In our view with respect the learned Single Judge was patently In
error when he held that application under Section 32 (1B) moved by the heirs of
the erstwhile tenant could not be maintained even though all the statutory
conditions for applicability of the Section were satisfied.
It has
to be kept in view that the tillers day legislation is based on the legislative
in that all the tillers of the soil, namely, the tenants would become deemed
purchasers of the lands on 1st April 19. Only in circumstances where the
erstwhile tenants got illegally dispossessed prior to 1st April 1957, a
question would arise as to what is to be done about them and that is the reason
why Legislature gave a locus penitential to such displaced tenants to apply for
restoration of possession from the landlords on satisfying the conditions laid
down in the Section and once those conditions are satisfied the estate of the
tenant would get enlarged into full ownership so far as the tenanted lands are
concerned. Thus it was a statutory right inhering in the estate of the
erstwhile tenant which obviously could be pressed in service not only by the
tenant himself but by his heirs and legal representatives who also can claim
the statutory right to purchase these lands being a right inherited by them
from the erstwhile tenant having a direct nexus with the proprietory rights in
the land. For all these reasons, therefore, the judgment under appeal must be
held to be erroneous in law and the said judgment was rightly overruled by the
Division Bench of the High Court in the case of Pandharinath (supra).
In the
result this appeal succeeds and is allowed. The judgment and order of the
learned Single Judge of the High Court are quashed and set aside and instead
the judgment and order rendered by the Maharashtra Revenue Tribunal as
confirming the orders of the Special Additional Tahsildar dated 20th August
1971 and that of Leave Reserve Deputy Collector, Nasik dated 10th January 1972
are restored. In the facts and circumstances of the case will be re order as to
costs.
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