Vs. Hussein Nhanu Jamadar  INSC 552 (18 November 1998)
V. Monohar, G.B.Pattanaik
appellant is the landlord. He has claimed that in a partition effected in the
year 1956 in the joint family of which he was a member an area admeasuring 1
acre 19 gunthas out of Revision Survey No. 8 of village Kudnoor in Gadhinglaj Taluka
came to his share. This land is agricultural land of which the original
respondent was a tenant at the material time.
coming into force of the Bombay Tenancy & Agricultural Lands Act. 1948, the
appellant filed an application under Section 31(1) read with Section 29 of the
said Act for possession on the ground that he bona fide required the land for
personal cultivation. Although the appellant was a minor at the time of the
application, he chose to exercise his rights under Section 31(1). This
application was ultimately dismissed by the Mamlatdar on 29.5.1957 on the
ground that under Section 31-B, there is a prohibition against termination of
tenancy if such termination would result in contravention of the provisions of
Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947.
Therefore, by virtue of the dismissal of the appellant's application under
Section 31(1) under the provisions of Section 31(1) the respondent became a
deemed purchaser of the said land on the postponed date 29.5.1957, the latter
being the date on which the application of the appellant was dismissed.
proceedings lunder Section 31-G were taken for determination of purchase price.
These proceedings, however, were dropped by the Agricultural Lands Tribunal on
31.5.1961 on the ground that the appellant was then a minor and the tenant
could not purchase the land. The tenant did not take any steps to challenge the
decision of the Tribunal dated 31.5.1961.
20.10.1964, by Maharashtra Act 39 of 1964, Chapter III-AA was added in the said
Act to confer certain benefits on the members and ex-members of the armed
this Chapter, Section 43-18 provides, inter alia that it shall be lawful for a
landlord at any time after commencement of the said Amendment Act, to terminate
the tenancy of any land and obtain possession thereof, but of so much of such
land as will be sufficient to make the total land upto the ceiling area. Under
sub-section (4) of Section 43-1B, nothing in the Bombay Prevention of
Fragmentation & Consolidation of Holdings Act., 1947 shall affect the
termination of any tenancy under this Chapter. The "landlord" for the
purposes of this Chapter is defined in Section 43-1A as a person who is or has
ceased to be, a serving member of the armed forces. The appellant, in the
present case, joined the armed forces on 21.11.1965 after he attained majority
on 7.11.1965. He served, on 11.4.1972, a notice terminating tenancy of the
respondent under Section 43-1B(2). In the proceedings which took place
thereafter, his application was allowed by the Sub-Divisional Officer on
31.3.1976. An appeal from this order to the Additional Commissioner was dismissed
on 25.4.1976. The respondent-tenant thereupon moved the High Court by way of a
writ petition which has been allowed by the impugned judgment & order dated
8.10.1980. Hence, the present appeal.
short question that requires consideration is whether in view of the dismissal
of the original application filed by the appellant-landlord under Section 31(1)
on 29.5.1967, it was open to the appellant to avail of the provisions of
Chapter III-AA. Under Section 43-1B, it is provided that notwithstanding anything
contained in the foregoing provisions of this Act, but subject to the
provisions of this section, it shall be lawful for a landlord (a member or
ex-member of the armed forces) at any time after the commencement of the
Tenancy and Agricultural Lands (Amendment) Act, 1964 to terminate the tenancy
of any land and obtain possession thereof in the manner set out in the section.
Section 43-1B, therefore, overrides the preceding provisions of the said Act.
Section 43-1E which forms a part of Chapter III-AA, provides as follows:
Nothing in this Chapter shall apply in relation to land which before the
commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1964
is purchased by any tenant under the provisions of Chapter III." According
to the appellant, Section 43-IE will come into operation only in those cases
where there is a completed purchase in favour of the tenant. It will not
protect a tenant who is only a deemed purchaser, but in respect of whom
proceedings under section 32G have not been completed. The appellant therefore
contends that as a member of the armed forces he can avail of Chapter III-AA
and Section 43-IB forming a part thereof to terminate the tenancy of the
respondent and obtain possession of the said land. According to the respondent.
Section 43-IE will protect him against Chapter III-AA provisions because he has
become a deemed purchaser on 29.5.1957.
issue came up for consideration before a Division Bench of the Bombay High
Court in the case of Ors. reported in AIR 1986 Bombay 408. While considering the scheme of Chapter III-AA, the
Bombay High Court held that Section 43-IE would come into operation only if
there has been so as to say, a completed purchase of the land by the tenant
under the provisions of Chapter III. It will not be possible to introduce,
while interpreting that section the theory of "deemed purchase" and
its ineffectiveness under certain circumstances. What is material is that the
vested rights flowing from the purchase of the land by the tenant under Chapter
III should not be disturbed. If the rights of the tenant as a purchaser have
not been crystallised, the landlord belonging to the armed forces can claim
benefit of the provisions of chapter III-AA. In the present case, as section
32G proceedings were dropped the rights of the respondent-tenant as a purchaser
have not been crystalised. The very purpose of introducing Chapter III-AA by
the Amending Act of 1964 is to give additional benefits to those landlords who
are members of the armed forces. The High Court has rightly observed in
connection with Chapter III-AA as follows:
these provisions would be set at naught if we accept the contention of Shri Bhonsale
that under Chapter III a tenant would be the purchaser in every case except where
the purchase has become ineffective under S.32G(3) or S.32F. It is material to
note that wherever the purchase has become ineffective under these two
provisions it is the landlord who has a first preference to get possession of
the land. This right has been conferred on the landlord under S.32P. What is
important is that under that section the landlord, whether he is a member of
the armed forces or not is entitled to have his first preference. It would thus
mean that the provisions of Chapter III-AA could not be implemented to the
benefit of the landlord belonging to the armed forces if we record a finding
that prior to the introduction of Chap.
on the statute book the tenant should be held to have become the owner except lunder
the two contingencies covered by Ss. 32G(3) and 32F.
opinion, the interpretation sought to be put by Shri Bhonsale on S.43-IE would
take away all the benefits which the Legislature intended to confer on the
landlords who lhave been serving as members of the armed forces. It is material
to note that S.43-IE uses the words 'purchase by the tenant'. It appear that
the Legislature has purposefully chosen not to use the words 'deemed to have
been purchased by the tenant' under Chap.
The words 'purchased by the tenant' will have to be interpreted in such a
manner that the intention of the Legislature to give additional benefits to the
landlords belonging to the armed forces is implemented. This is permissible if
there is no violence to the language used by the Legislature and the meaning of
the phrase 'purchased by the tenant' can be opoperly understood as not to cover
'deemed to have been purchased by the tenant'." (underling ours) The
appellant, therefore, in the present dase, did not lose his rights under
Chapter III-AA because the proceedings under Section 32-G had been dropped, and
the tenant remained only a deemed purchaser and could not be called a purchaser
as contemplated under Section 43-IE.
submitted by the respondent that the Agricultural Lands Tribunal was not right
in dropping proceedings under Section 32-G. Its order of 31.5.1961 is bad in
law. He relied upon a decision of the Bombay High Huna Mahajan reported in
(1976) 78 BLR 427 where this Court has held that lunder Section 31 the
landlords have a choice to avail of one of the two provisions of resumption
namely either Section 31(1) or Section 31(3). No landlord can avail of both the
provisions. Learned counsel for the respondent, therefore, contends that in the
present case the appellant having exercised his choice under Section 31(1),
could not have urged in the proceedings under Section 31G his disability as a
minor under Section 31(3). The order of 31.5.1961 of the Agricultural Lands
Tribunal, however, was not challenged by the respondent. The order of 31.5.1961
has become final and the decision rendered by the Agricultural Lands Tribunal
as between the appellant and the respondent is binding on both the parties. A
decision simply because it may be wrong would not thereupon become a nullity.
It would continue to bind the parties unless set aside. The effect of the
decision of 31.5.1961 on the parties therefore, cannot be ignored. In the
present case, since the tenant could not complete his purchase by reason of the
proceedings under Section 31G being dropped he cannot now contend that the
decision has no legal effect or that the proceedings under Section 31G ought to
have been completed and, therefore, he should be looded lupon as a purchaser.
appellant has also drawn our attention to Section 31F(IA) under which, if a
tenant holding land from a landlord who was a minor has not been given
intimation at the commencement of the Bombay Tenancy and Agriucltural Lands
Amendment Act, 1969, but being in possession of the land on such commencement,
is desirous of exercising the right conferred on lhim lunder sub-section(1) he
may give such intimation to the landlord and the Tribunal within a period of
two years from the commencement of the Act.
the tenant was given an additional opportunity to give intimation after the
commencement of the Amendment Act of 1969. Even this opportunity was not
availed fo by the tenant. The respondent has thus continued as a tenant. His
tenancy can be terminated under Section 43-IB.
permises the High Court was not right in coming to the conclusion that the
application of the appellant was barred under Section 43-IE. We, therefore,
allow this appeal set aside the impugned judgment and order of the High Court
and restore the order of the Sub-divisional Officer as confirmed by the
Additional Commissioner. There will, however, be no order as to costs.