Babu
Vithu Gaikwad [Dead] By Lrs Vs. Chintaman Sadashiv & Ors [2007] Insc 595 (16 May
2007)
A.K. Mathur & Tarun Chatterjee
J U D G M E N T TARUN CHATTERJEE, J.
1. These appeals are preferred against the final order 1st October, 1997 and order dated 15th September, 1999 passed in C.A.No.8320 of 1997 by a learned
Single Judge of the High Court of Judicature at Bombay in Writ Petition No.139
of 1984. By the order dated 1st October 1997, the learned Single Judge of the
High Court dismissed the aforesaid writ petition in which the appellants prayed
for quashing a judgment and order of Maharasthra Revenue Tribunal [in short
MRT] dated 30th August, 1983 in Revision Application No. MRT P 14 of 1981 by
which the Tribunal had confirmed the order passed by the Tehsildar in Tenancy
Case No.32 FG/54/78 dated 31st August, 1978. In the application under Article
227 of the Constitution, a prayer was also made by the appellants to restore
the order passed by the Appellate Court in Tenancy Appeal No.56 of 1979 dated 27th October, 1980.
2. The facts leading to the filing of these appeals in short may be stated
as follows:
3. Agriculture land ( for short "the aforesaid land") bearing
Survey No.175/1 admeasuring 2 acres and 11 gunthas situated at Village Biwadi,
Tal Purandhar, District Pune was owned by Sadashiv Purandhare, father of the
respondent No.1 Chintaman Sadashiv. Babu Vithu Gaikwad whose heirs and legal
representatives are the appellants in this Court was the original tenant in
respect of the aforesaid land. A partition of the aforesaid land was affected
by the deceased father of the respondents by which the disputed land was
allotted to him. On the tillers day, i.e., 1st April, 1957 the respondent No.1 was a minor. He attained majority on 6th October, 1960. In compliance with Section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter called the 'Act'), the respondent No.1 issued notice to Babu Vithu
Gaikwad [since deceased] for termination of his tenancy in respect of the
aforesaid land. This termination notice was issued within one year of attaining
the age of majority. The landlord- respondent No.1 had failed to take out
proceedings under Section 29 of the Act until he filed an application on 27th March, 1962. Since the application under Section 29 of the Act was time barred, the
proceedings taken out by the landlord-respondent No.1 were withdrawn on 5th September, 1964. After one year of such withdrawal, Babu Vithu Gaikwad -the tenant-
had filed an application under Section 32F read with Section 32G of the Act on
2nd August, 1965. In these proceedings, on 6th October, 1967, a statement of the tenant was recorded that he was willing to purchase the disputed land.
The additional Tehsildar rejected the application of the tenant by his order
dated 28th January, 1973. The tenant filed an appeal before the Sub Divisional
Officer which was allowed and the matter was remitted back to the Additional
Tehsildar for fresh disposal. After a month by his order dated 31st August, 1978, the Additional Tehsildar held that under Section 32F the right of the
tenant to purchase the aforesaid land was forfeited and, hence, directed that
proceedings could be initiated under Section 32P of the Act. Aggrieved by this
order, the tenant preferred an appeal before the Additional Collector, Pune and
by an order dated 27th October, 1980 he allowed the appeal and remanded the
matter back to Additional Tehsildar for holding an enquiry under Section 32G to
32R of the Act for fixing the price for purchase in accordance with law. Being
aggrieved, the landlord-respondent No.1 filed a revision petition before the
MRT, Pune which was allowed by the tribunal by an order dated 30th August, 1983
and against this order the tenants had filed a writ petition in the High Court
of judicature at Bombay, which was dismissed by the impugned order in respect
of which special leave petition was filed and leave was granted.
4. We have heard the learned counsel for the parties and examined all the
orders mentioned above and the materials on record. Before considering whether
the High Court was justified in confirming the order of the tribunal, it would
be appropriate to refer to some of the relevant provisions of the Act which
would be required for consideration in order to dispose of the appeals.
"29. Procedure of taking possession:- (1) A tenant or an agricultural
labourer or artisan entitled to possession of any land or dwelling house under
any of the provisions of this Act may apply in writing for possession to the
Mamlatdar.
The application shall be made in such form as may be prescribed and within a
period of two years from the date on which the right to obtain possession of
the land or the dwelling house is deemed to have accrued to the tenant,
agricultural labourer or artisan, as the case may be.
(2) Save as otherwise provided in sub-section (3A), no landlord shall obtain
possession of any land or dwelling house held by a tenant except under an order
of the Mamlatdar. For obtaining such order he shall make an application in the
prescribed form and within a period of two years from the date on which the
right to obtain possession of the land or the dwelling house, as the case may
be, is deemed to have accrued to him.
(3) On receipt of application under sub-section (1) or (2) the Mamlatdar
after holding an enquiry, pass such orders thereon as he deems fit:
Provided that where an application under sub-section (2) is made by a
landlord in pursuance of the right conferred on him under section 31, the
Mamlatdar shall first decide, as preliminary issues, whether the conditions
specified in clause (c) and (d) of Section 31A and sub-section (2) and (3) of
Section 31B are satisfied. If the Mamlatdar finds that any of the said
conditions is not satisfied, he shall reject the application forthwith.
(3A) Where a landlord proceeds for termination of the tenancy under
sub-section (1) of Section 43-1B, then, notwithstanding anything contained in
this Act, the application for possession shall be made to the Collector, who
shall after holding an enquiry in the prescribed manner, pass such orders
thereon as he deems fit.
(4) Any person taking possession of any land or dwelling house except in
accordance with the provisions of sub- section (1), (2) or as the case may be,
(3A), shall be liable for forfeiture of crops, if any, grown in the land in
addition to payment of costs as may be directed by the Mamlatdar or by the
Collector and also to the penalty prescribed in section 81."
"31. Landlord's right to terminate tenancy for personal cultivation and
nonagricultural purposes.- (1) notwithstanding anything contained in section 14
and 30 but subject to sections 31A to 31D (both inclusive), a landlord (not
being a landlord within the meaning of Chapter III-AA) may, after giving notice
and making an application for possession as provided in sub-section (2),
terminate the tenancy of any land (except a permanent tenancy), if the landlord
bona fide requires the land for any of the following purposes:- i) cultivating
personally, or ii) for non-agricultural purposes.
(2) The notice required to be given under sub-section (1) shall be in
writing, shall state the purpose for which the landlord requires the land and
shall be served on the tenant on or before 31st day of December 1956. A copy of
such notice shall, at the same time, be sent to the Mamlatdar. An application
for possession under Section 29 shall be made to the Mamlatdar on or before
31st day of March 1957.
(3) Where landlord is a minor, or a widow, or a person subject to mental or
physical disabilities then such notice may be given and an application for
possession under section 29 may be made, i) by the minor within one year from
which he attains majority;
ii) by the successor-in-title of a widow within one year from the date on
which her interest in the land ceases to exist;
iii) within one year from the date on which mental or physical disability
ceases to exist; and Provided that where a person of such category is a member
of a joint family, the provisions of this sub-section shall not apply if at
least one member of the joint family is outside the categories mentioned in
this sub-section unless before the 31st day of March 1958 the share of such
person in the joint family has been separated by metes and bounds and the
Mamlatdar on enquiry is satisfied that the share of such person in the land is
separated, having regards to the area, assessment, classification and value of
land, in the same proportion as the share of that person in the entire joint
family property, and not in a larger proportion."
"32F. Right of tenant to purchase where landlord is minor, etc.- (1)
notwithstanding anything contained in the preceding sections,- a) where the
landlord is a minor, or a widow, or a person subject to any mental or physical
disability the tenant shall have the right to purchase such land under section
32 within one year from the expiry of the period during which such landlord is
entitled to terminate the tenancy under Section 31 and for enabling the tenant
to exercise the right of purchase, the landlord shall send an intimation to the
tenant of the fact that he has attained majority, before the expiry of the
period during which such landlord is entitled to terminate the tenancy under
section 31:
Provided that where a person of such category is a member of a joint family,
the provisions of this sub- section shall not apply if at least one member of
the family is outside the categories mentioned in this sub- section unless
before the 31st day of March 1958, the share of such person in the joint family
has been separated by metes and bounds and the Mamlatdar on enquiry is
satisfied that the share of such person in the land is separated, having
regards to the area, assessment, classification and value of land, in the same
proportion as the share of that person in the entire joint family property, and
not in a larger proportion.
b) Where the tenant is a minor, or a widow or a person subject to any mental
or physical disability or serving member of the armed forces, then subject to
the provisions of clause (a), the right to purchase land under section 32 may
be exercised- i) by the minor within one year from which he attains majority;
ii) by the successor-in-title of a widow within one year from the date on
which her interest in the land ceases to exist;
iii) within one year from the date on which mental or physical disability
ceases to exist; and iv) within one year from the date on which the tenant
ceases to be a serving member of the armed forces:
Provided that where a person of such category is a member of a joint family
the provisions of this sub-section shall not apply if at least one member of
the family is outside the categories mentioned in this sub-section unless
before the 31st day of March 1958, the share of such person in the joint family
has been separated by metes and bounds and the Mamlatdar on enquiry is
satisfied that the share of such person in the land is separated, having
regards to the area, assessment, classification and value of land, in the same
proportion as the share of that person in the entire joint family property, and
not in a larger proportion.
(1A) A tenant desirous of exercising the right conferred on him under
sub-section (1) shall give an intimation in that behalf to the landlord and the
Tribunal in the prescribed manner within the period specified in that
sub-section:
Provided that if a tenant holding land from a landlord (who was a minor and
has attained majority before the commencement of the Tenancy and Agricultural
Land Laws (amendment) Act, 1969) has not given intimation as required by this
sub-section but being in possession of the land on such commencement is
desirous of exercising the right conferred upon him under sub-section (1), he
may give such intimation within a period of two years from the commencement of
that Act.
(2) The provisions of Section 32 to 32E (both inclusive) and section 32G to
32R (both inclusive) shall, so far as may be applicable, apply to such
purchase."
5. At this stage, we may also note that the order of the High Court dated
1st October, 1997 was sought to be reviewed by the appellants which by the
order darted 15th September 1999 was also rejected. We may mention here that
since the appellants have challenged the final order along with the order
passed in the review petition it would not be necessary for us to deal with the
question whether the High Court was justified in rejecting the review
application. Let us, therefore, confine ourselves to the order of the High
Court by which the petition under Article 227 of the Constitution was rejected.
6. On behalf of the appellants it was submitted that the tenant had shown
his willingness to purchase the aforesaid land in the proceedings before the
trial authorutyunder Section 32G of the Act.
According to the learned counsel for the appellants the tribunal as well the
Tehsildar have misconstrued the provisions of Section 32 and 32F of the Act and
therefore the order passed by the High Court and the Maharashtra Revenue
Tribunal deserve to be set aside and the order passed in Appeal No. 56 of 1979
dated 27th October 1980 must be restored.
7. Before the Additional Tehsildar, the question that was raised by the
parties was about the partition affected between them. The Tehsildar held that
the tenant had in no uncertain terms accepted Chintaman Sadashiv Purandhare as
his landlord and paid rent to him and received rent receipts from him and this
conduct on the part of the tenant must be construed to be a waiver. The
Tehsildar also held that after accepting Chintaman Sadashiv Purandhare as his
landlord and paid rent to him and received rent receipts from him, it was not
open to the tenant to say that Chintaman Sadashiv Purandhare was not his
landlord. On the above findings, the Tehsildar held that the partition was
valid and genuine and Chintaman Sadashiv Purandhare was the landlord of the
aforesaid land.
8. After deciding the question of partition, the Tehsildar went on to decide
whether the tenant had complied with the provisions regarding giving intimation
within the period specified in Section 32G of the Act. After considering the
fact, that the landlord was a minor on the tillers day, i.e., on 1st April,
1957 and, therefore, the tenant could not become entitled to purchase the
aforesaid land as contemplated in Section 32F of the Act. The Tehsildar also
found from the record that the landlord had attained majority on 6th October,
1960 and it was incumbent on the part of the tenant to give intimation of
purchase of the aforesaid land by 6th October, 1962, in view of Section 32F of
the Act.
According to the Tehsildar, the tenant had failed to comply with the
mandatory requirement as enjoined by Section 32F of the Act.
Accordingly, the application was rejected by the Tehsildar, inter alia, on
the findings that the partition was valid and genuine and the tenant had
forfeited the right of purchase conferred on him by Section 32F of the Act and
therefore directed that the purchase by the tenant became ineffective. In
appeal the order of the Tehsildar was set aside and appeal filed against the
said order was allowed and the case was sent back to the Tehsildar for
conducting an enquiry under Section 32G for fixing the purchase price in
accordance with law.
9. Feeling aggrieved and dissatisfied with the order of the Appellate
Authority, a revision was filed at the instance of the present respondent which
came to be registered as Revision Application No. MRT-PIL 4/1981. However, the
Revisional Authority agreed with the findings of the Tehsildar to the extent
that the tenant had failed to exercise his right to purchase the land as he did
not give intimation as required under Section 32F (1)-A of the Act. So far as
the question of intimation as required under Section 32G of the Act is
concerned, the Revisional Authority found that two things were necessary in
order to show that the statement of the tenant recorded in the proceedings
under Section 32G of the Act amounted to an intimation. Accordingly, it was
held that there should be a statement of the tenant recorded in the proceedings
under Section 32G of the Act and such statement must be recorded in the
presence of the landlord. However, the Revisional Authority found that the
aforesaid two ingredients were absent in the present case and, accordingly,
provisions of Section 32F of the Act regarding intimation to be given by the
tenant were not complied with. On the aforesaid findings, the Revisional
Authority came to the conclusion of fact that the tenant had failed to exercise
his right to purchase the land and, therefore, the trial court, namely, the
Tehsildar was perfectly justified in holding that the proceedings under Section
32P of the Act should be started. The revision application was thus allowed and
the order passed by the Appellate Authority was set aside and that of the
Tehsildar was restored.
10. Feeling aggrieved by this order of the Revisional Authority, the
appellants filed a writ petition before the High Court which came to be
registered as Writ Petition No.139 of 1984 and by the impugned order the High
Court dismissed the writ petition and held that there was no error of jurisdiction
nor was there any error apparent on the face of the record and accordingly the
order passed by the Tehsildar and affirmed by the MRT was perfectly valid and
did not warrant any interference. Feeling aggrieved by this order of the High
Court, the appellants preferred special leave petition in this court.
11. Before us, the following questions were raised for our discussion by the
Learned Counsel for the parties. The questions raised before us for being
decided may be listed as:
1. Whether the provisions of Section 32F(1A) of Bombay Tenancy and
Agricultural Land Act, 1948 become inapplicable when a landlord applies for
recovery of possession under section 29 r/w Section 31 of the said Act?
2. Whether Section 29 read with Section 31 and Section 32F of the Act are
mutually exclusive?
12. Since the aforesaid two questions are interrelated, let us discuss the
two issues together. As noted hereinabove, Section 29 deals with the procedure
involved in taking possession by a landlord, Section 31 talks about landlord's
right to terminate tenancy for personal cultivation and nonagricultural
purposes while Section 32F pertains to right of tenant to purchase where
landlord is minor.
13. Section 29 and 31 if read together deal with the process involved in a
situation where the landlord wants to take possession of his land from the
tenant and his right to terminate the tenancy for personal use. Section 32F on
the contrary speaks about the right of the tenant to purchase the land in case
the landlord is a minor.
Both the parts contradict each other in the sense that if the landlord gets
to exercise his right, the tenant cannot and vise versa. Thus, in our view, it
is only logical to conclude that when a landlord applies for recovery of
possession under section 29 read with Section 31 of the Bombay Tenancy and
Agricultural Land Act, 1948, the provision of Section 32F(1A) of said Act
become inapplicable, thereby making them mutually exclusive to the extent that
if one is applicable, the other could not be evoked. That apart, it must be
borne in mind that an error on the part of the landlord does not mean that the
tenants' rights under Section 32F are evoked automatically.
14. However, considering the present case, it is important to note that the
Tribunal was of the view that the tenants had not brought anything on record
that showed that they had filed any application in accordance with section 32F
in order to purchase the aforesaid land. It stated that the Appellate Authority
had held them to be deemed purchasers even though the intimations that were put
by the tenants were not in accordance with law. It is important to mention here
that Section 32G speaks about the power of the Tribunal to issue notice and
determine price of land to be paid by the tenants. The tenants under this
section have to show willingness to purchase the land after which the Tribunal
is duty bound to give opportunity to the landlord and any other concerned party
to be heard before deciding the value of the land. In the present case, the
Tribunal was of the view that the second limb of the condition had not been
satisfied, i.e., the landlord's statements were not brought on record. This was
the inconsistency in the process. Considering this, we too are of the view that
since the intimation was inconsistent with law, the Appellate Authority erred
in holding the tenants as deemed purchasers. We, thereby, uphold the decision
given by the Tribunal and the Single Judge Bench of the High Court of Bombay on
this aspect.
15. Before we part with this judgment we find it appropriate to discuss the
cases mentioned in the application which were not looked into by the High
Court. The first case is that of Harshavardhan Shrinivas Potnis v. Mahadu
Pundalik Gangurde (AIR 1980 Bombay198). In that case, the disputed property
belonged to one Girijabai, who was admittedly a widow and had not exercised her
right of resumption under Section 31 of the Act till her death. Girijabai died
on 4th June, 1965. By a will executed by her, she bequeathed the two fields in
question in favour of the petitioner who was then minor having been born on13th
June, 1956.
He attained majority on 13th June, 1976.
16. The High Court observed that the minor who succeeded to the interest of
a widow after 31st December 1956 was not a person who was a landlord either on
31st December 1956 and he cannot take advantage of the extension of the period
provided for a minor who was a landlord on 31st December, 1958. The period
during which the minor after having succeeded to the widow could have terminated
the tenancy of the tenant under Section 31 (3) was one year from the time of
her death. The intimation required to be given under Section 32F (1A) by the
tenant in order to exercise his right of purchase should have been given within
one year from the expiry of the period of one year referred to in Section 31
(3). Thus the period in the instant case, during which the tenant should have
served an intimation, was within two years from the death of the widow. This
case is however distinguishable from the one at hand as this case deals with
succession in case of death of a widow whereas the one before us is specific to
the rights of a minor as becoming the landlord of the disputed property on
attaining the age of majority.
17. The case of Amrit Bhikaji Kale and Ors. v. Kashinath Janardhan Trade and
Anr. [AIR 1983 SC 643] is also distinguishable from the one before us. In that
case, the disputed property belonged to Tarachand Chopra. Janardhan, the father
of the respondent was admittedly the tenant of this land on 1st April, 1957.
Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 as amended
from time to time provided that on the 1st April, 1957 styled as the tillers'
day every tenant shall subject to other provisions of the section and the provisions
of the next succeeding sections be deemed to have purchased from his landlord,
free from all encumbrances subsisting thereon on the same date the land held by
him as a tenant if other conditions of the section are satisfied. Thus by
operation of law, Janardhan, who was the tenant of the land on the tillers' day
became the deemed purchaser thereof. Landlord Tarachand died on August 12,
1959. Before his death, landlord Tarachand had executed a will and bequeathed
the suit land to Ashoklal Gugale who got his name mutated in the revenue record
in respect of the suit land in his favour as owner. However, on the date of
mutation, Ashoklal was a minor.
18. The said Janardhan applied to the Tribunal for purchase of the land and
fixation of price of the same. The Tribunal went into the records and held that
Tarachand was the recorded landlord and being under no disability and Janardhan
being tenant of the land, by operation of law, became deemed purchaser and all
subsequent proceedings were null, void and nonest. The Tribunal accordingly
determined the purchase price. The High Court upheld the said decision.
19. The Supreme Court after going through the records was of the following
opinion:
"Janardhan was deprived of his possession by an order which had no legal
sanction. He was deprived of possession on the footing that he was a tenant
ignoring and overlooking the statutory event that he had become the owner Even
when the Legislature passed such a revolutionary measure its knowledge was not
transmitted to the persons for whose benefit the measure was enacted and there
was no awakening to one's right."
20. On examining the above mentioned case, we are of the opinion that the
case of Amrit Bhikaji Kale pertains to determination of the question whether
Janardhan was a deemed purchaser or not. However, in the case before us, the
rights of the minor are not disputed. The question of the tenants becoming a
deemed purchaser does not arise in the present case as the land was transferred
in the name of the minor before the tiller's day.
21. As per our discussions above, we, therefore, hold that when a landlord
applies for recovery of possession under Section 29 read with Section 31 of the
Bombay Tenancy and Agricultural Land Act, 1948, the provision of Section
32F(1A) of said Act become inapplicable, thereby making them mutually exclusive
to the extent that if one is applicable, the other could not be evoked.
22. For the reasons aforesaid, the answers to the question raised as noted
herein earlier are in the negative. Therefore, we dismiss the appeal upholding
the decision of the High Court of Bombay and the MRT, with no orders as to
costs.
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