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CASE NO.: Appeal (civil)  2337-2338 of 2000

PETITIONER: Babu Vithu Gaikwad [Dead] by LRs

RESPONDENT: Chintaman Sadashiv & Ors

DATE OF JUDGMENT: 16/05/2007

BENCH: A.K. Mathur & Tarun Chatterjee

JUDGMENT: 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

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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

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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

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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

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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

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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.

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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.

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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.