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PETITIONER: PATEL SURESHBHAI JASHBHAI

       Vs.

RESPONDENT: PATEL SATABHAI MATHURBHAI

DATE OF JUDGMENT28/04/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1983 SCR  (2) 992        1983 SCC  (3) 294  1983 SCALE  (1)544

ACT:      Bombay Tenancy and Agricultural Lands Act, 1948-ss. 32, 32 G,  32 PP-  Scope of-Tenant-Deemed  Purchaser of  land  - Failed to  be present-Sale  declared ineffective-Application under section  32 PP  for  determination  of  price-Landlord entitled to  contend applicant not a tenant-Not precluded by res-judicata,

HEADNOTE:      By the  operation of  s. 32  of the  Bombay Tenancy and Agricultural Lands  Act 1948 the respondent who was recorded as a  tenant on  the tillers’  day i  e. 1st April, 1957 was deemed to  have  purchased  the  land  from  the  appellant- landlord  subject  to  other  provisions  of  the  Act.  The respondent having  refused to  accept  notice  u/s  32G  for determining the price of the land and failing to appear, the Tribunal declared  the sale  ineffective.  Subsequently  the respondent made  an application under s. 32 PP that afforded a fresh  opportunity to  a tenant  who had  failed to appear before the  Tribunal as  a result of which the sale was held ineffective, requesting  the Tribunal  to determine purchase price of the land. The Tribunal held that the respondent was not a tenant of the land and was not entitled to be declared a deemed  purchaser and  accordingly it  is not necessary to determine the  price  The  Deputy  Collector  dismissed  the appeal preferred  by the respondent. The Revenue Tribunal in a revision  petition held that once the notice was issued to a person  who is shown to have purchased the land u/s 32 and if the  sale is  held ineffective  because of his absence in the proceeding  under s. 32G, in a subsequent proceeding u/s 32 PP  it is not open to the landlord to challenge that such a person was not tenant. A petition under Article 227 of the Constitution moved  by the  appellant-landlord was dismissed in limine by the High Court,      Dismissing the appeal, ^      HELD: The  view of the Revenue Tribunal is not correct. Section 32 PP confers a right upon a person claiming to be a tenant to  make an application for determining the price and the pre-condition  is that  he failed  to appear  before the Tribunal in  a proceeding  u/s 32G. In such a situation, the landlord is a necessary party. The landlord can and would be

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entitled to  contend that the person claiming to be a tenant and making  an application  u/s 32  PP was  not a  tenant on April 1,  1957. Undoubtedly  only that person is entitled to make an  application u/s  32 PP  who having failed to appear before the  Tribunal in  a proceeding u/s 32G, the statutory sale was  declared ineffective  but  on  that  account  such person making an application under s. 32 PP must be accepted as tenant without further enquiry and without permitting the landlord to  challenge the  status of  the applicant  is not warranted by the 993 language of  s. 32  PP. The  Revenue  Tribunal’s  view  that unless the  landlord challenged  the order u/s 32G declaring the sale  having become  ineffective on  the footing  that a person to whom notice was sent was a tenant on April 1, 1957 and his failure to appear without anything more would clothe him with the status of a tenant overlooks the possibility of a person  to whom  notice is served not appearing because he had nothing to do with the land.                                             [996 H, 997 A-H]      The failure  of the landlord to question the sale being declared ineffective on account of the absence of the person to whom  notice was  sent and who defaulted would not either on the  general  principle  of  res  judicata  or  principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry. There is only one situation which may preclude the enquiry in that if on  receipt of  notice the  tenant did not appear and the landlord  appeared   and  unequivocally  admitted  that  the defaulting person  was a  tenant on the relevant date and on his  failure   to  appear   the  sale   should  be  declared ineffective, the  landlord in subsequent proceeding under s. 32 PP  would be  estopped from challenging the status of the applicant tenant. [998 A.C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1583 of 1970.      Appeal by  special leave  from the  Judgment and  order dated the 22-12-1969 of the Gujarat High Court in S.C.A. No. 1630 of 1969.      V. A. Bobde and A. G. Ratnaparkhi for the Appellant.      R.  B.   Datar  and  Ms.  Madhu  Moolchandani  for  the Respondent.      The Judgment of the Court was delivered by      DESAI J.  Appellant Sureshbhai  is the  owner  of  land bearing Survey No. 21 situated at Village ode, Taluka Anand, District Kaira  in Gujarat  State. One  Nathabhai Zaveribhai and the  present respondent  were recorded as tenants on the tillers’ day  i.e. Ist April, 1957. Section 32 of the Bombay Tenancy and  Agricultural Lands  Act, 1948 (’Tenancy Act for short)  provided   that  on  the  1st  day  of  April,  1957 (hereinafter referred  to as  the tillers’ day) every tenant shall subject to the 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 tenant. Section 32G provided for the follow up action of the compulsory purchase that ensues by the 994 operation  of  sec.  32.  Section  32G  thus  envisages  the determination of  the price  in accordance  with the various provisions of  the Act,  of the  land deemed  to  have  been

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purchased  by  the  tenant  on  the  tillers’  day  and  the methodology of  its payment. In order to determine the price the Agricultural  Lands Tribunal  (’Tribunal’ for short) has to serve  a notice  in the  prescribed  manner  to  (a)  all tenants who  u/s 32  are deemed  to have purchased the lands (b) all  landlords of  such lands; and (c) all other persons interested therein to appear before it on the date specified in the  notice. Sub-sec.  2 provides that the Tribunal shall record in the prescribed manner, the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. Sub-sec. 3 provides that where tenant fails to appear  or makes  a statement  that he  is not willing to purchase the land, the Tribunal shall by an order in writing declare that  such a  person is  not willing to purchase the land and  that the  purchase is  ineffective. The  remaining sub-secs. provide  the manner  and method of determining the price. The Tribunal having jurisdiction in the area in which the land  involved in  the dispute is situated issued notice to Nathabhai Zaveribhai and the present appellant as well as the landlord  of the  land u/s  32G.  It  appears  both  the tenants i.e. Nathabhai Zaveribhai and the present respondent refused to  accept notice to remain present and when summons was served  by substituted  service both  of  them  did  not remain present  The Tribunal  accordingly declared  the sale ineffective  as   provided  by  sec.  32G(3).  The  Tribunal accordingly made  its order  annexure dated  July  20,  1962 declaring that  the sale  is ineffective.  Subsequently  the present respondent  made an application u/s 32 PP requesting the Tribunal  to determine  the price  of the land deemed to have been  purchased by  him being  Survey No. 21 of Village ode on  April 1,  1957. It  may be clarified that sec. 32-PP was designed to give a further opportunity to the tenant who had failed  to appear  before the  Tribunal which led to the sale being  held ineffective,  to purchase  the  land.  This application  was  resisted  by  the  appellant-landlord  The Tribunal held  that the  present respondent was not a tenant of the  suit land  and Nathabhai  Zaveribhai  was  the  only tenant who  has not  made  an  application  u/s  32  PP  and therefore the  present respondent  is  not  entitled  to  be declared a  deemed  purchaser  and  accordingly  it  is  not necessary to  determine the  purchase price.  The respondent preferred an appeal to the Deputy Collector. This appeal was dismissed  by  the  Deputy  Collector  concurring  with  the findings of  the Tribunal.  The respondent  moved a revision petition u/s 76 995 of the  Tenancy Act  in  the  Gujarat  Revenue  Tribunal.  A learned member  of the  Gujarat Revenue  Tribunal held  that once the  notice was  issued to  person who is shown to have purchased  the   land  u/s  32  and  if  the  sale  is  held ineffective because  of his  absence under  sec. 32-G,  in a subsequent proceeding  u/s 32  PP it  is  not  open  to  the landlord to  challenge that  such a  person was  not tenant. Alternatively, on  the merits  it was  held that the present respondent was  tenant of  the land  on April 1, 1957 and he has become  a deemed purchaser and the Tribunal was bound to determine the  price. The matter was accordingly remitted to the Tribunal.  Present appellant-landlord  moved a  petition under Art.  227 in  the High  Court  of  Gujarat  which  was dismissed in limine. Hence this appeal by special leave.      It is not in dispute that the notice u/s 32G was issued to the  present respondent  and Nathabhai  Zaveribhai with a view to determining the price of land bearing Survey No. 21. The notice was also served upon the appellant-landlord. In a proceeding for  determining the price, the necessary parties

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are the  landlord and  the tenant  as the tenant becomes the owner of  the land  by operation of law. A statutory duty is cast on  the Tribunal  to proceed  to determine the purchase price. But  as held by a Constitution Bench of this Court in Sri Ram  Ram Narain.  Medhi v.  The State of Bombay(1), that "the title of the landlord to the land passes immediately to the tenant  on the  tillers’ day  and there  is a  completed purchase or  sale thereof  as between  the landlord  and the tenant. The title of the land which was vested originally in the landlord  passes to  the tenant  on the tillers’ day and this title  is defeasible  only in  the event  of the tenant failing to  appear or  making a  statement that  he  is  not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal."      Thus,  it  is  clear  that  the  title  passes  by  the operation of law. The Tribunal has to determine the price as envisaged by  s. 32G. In order to effectively dispose of the proceedings in  the presence  of the  necessary parties, the Tribunal is  under an  obligation to  issue  notice  to  the landlord and  the tenant.  Order of  the Tribunal dated July 20, 1962  shows that  both the tenants and the landlord were served. The  order further shows that the tenants refused to accept the  notice and  after substituted  service  did  not remain present. It 996 appears that  the landlord  remained present.  The  Tribunal declared the  sale ineffective  on account of the absence of the tenants. So far there is no dispute,      It appears  that the  Legislature became  aware of  the fact that  for want  of legal  literacy a sizeable number of tenants  did  not  appreciate  the  implication  of  such  a revolutionary measure and presumably under some influence of the landlord  and the  local atmosphere, the tenants did not appear  before   the  Tribunal  with  the  result  that  the statutory sales  were declared  ineffective. The Legislature took notice  of this phenomenon defeating an agrarian reform legislation and introduced sec. 32 PP by the Amending Act of 1965.      Sec. 32  PP was  designed to give a further opportunity to the  tenant to purchase the land. The relevant portion of sec. 32 PP reads as-under;           "s. 32 PP. Notwithstanding anything contained      in sections  32G and 32P, where before the date of      the coming  into force  of the  Bombay Tenancy and      Agricultural Lands  (Gujarat Amendment)  Act, 1935      (hereinafter referred  to in  this section as "the      said date")-           (i)  any land has been at the disposel of the                Collector under  section 32P  on account                of the  purchase  of  the  land  by  the                tenant thereof having become ineffective                under sub-section  (3) of section 32G by                reason of  the tenant  failing to appear                before  the   Tribunal   or   making   a                statement expressing  his  unwillingness                to purchase the land, and"                     *              *              *      Pursuant to  this fresh  opportunity afforded  by  sec. 32PP respondent  made an application requesting the Tribunal to  determine   the  purchase  price.  The  Gujarat  Revenue Tribunal (Revenue Tribunal for short) held that the sale had become ineffective  under sub-sec. (3) of sec. 32G by reason of the  tenant failing to appear before the Revenue Tribunal and therefore  in an  application under sec. 32PP the status of the applicant being a tenant is no more open to debate or

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dispute and  must be  deemed to  be  concluded  between  the parties. It  is difficult  to subscribe  to this  view. Sec. 32PP 997 confers a  right upon  a person  claiming to be a tenant and the precondition  is that  he having failed to appear before the  Tribunal   in  a   proceeding  u/s  32G,  can  make  an application for  determining the price. In such a situation, the landlord is a necessary party. The  landlord   can   and would be  entitled to contend that the person claiming to be a tenant and making an application u/s 32PP was not a tenant on April 1, 1957. It is difficult to subscribe to the inter- pretation of  sec. 32PP adopted by the Tribunal. Undoubtedly only that person is entitled to make an application u/s 32PP who having  failed  to  appear  before  the  Tribunal  in  a proceeding  u/s   32G,  the   statutory  saie  was  declared ineffective but  on  that  account  such  person  making  an application under  sec. 32PP  must  be  accepted  as  tenant without further  enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the language  of sec.  32PP. It  is undoubtedly true that an application u/s  32PP can  be made where the purchase of the land by  the tenant has been declared ineffective u/s 32G(3) by reason  of  the  tenant  failing  to  appear  before  the Tribunal or  making a statement expressing his unwillingness to purchase  the land.  But it should not be overlooked that where a  notice was  sent by  the Tribunal  u/s 32G  to  the person to  whom the  Tribunal prima  facie believed  to be a tenant and  if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective, the  application u/s  32 PP  would not preclude the landlord  from contesting  the petition  by showing that the applicant  was not a tenant on 1.4.57. In any proceeding u/s 32G  and 32PP  the most important issue to be determined is whether  the person  claiming to be a tenant was a tenant on April  1, 1957  and an  additional issue  will have to be determined in  an application  u/s 32PP  whether to  such  a person notice  had been issued u/s 32G and on his failure to appear the  sale became  ineffective. The  Revenue  Tribunal appears  to   be  of  the  view  that  unless  the  landlord challenged the  order u/s  32G  declaring  the  sale  having become ineffective  on the  footing that  a person  to  whom notice was sent was a tenant on April 1, 1957 and is failure to appear  without anything  more would  clothe him with the status of  a tenant. This approach overlooks the possibility of a  person to whom notice is served, not appearing because he had nothing to do with the land.      In  such   a  situation  an  unadjudicated  inferential determination of  status cannot preclude an inquiry into the status which is a sine 998 qua non  for claiming  the right  in a subsequent proceeding between the  parties. Therefore  the failure of the landlord to question  the sale  being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would  not either  on the general principle of res judicata or principle analogous to constructive res judicata preclude the  landlord from  challenging the  status in  the subsequent enquiry.  There is  only one  situation which may preclude the  enquiry in  that if  on receipt  of notice the tenant  did   not  appear  and  the  landlord  appeared  and unequivocally admitted  that the  defaulting  person  was  a tenant on the relevant date and on his failure to appear the sale  should   be  declared  ineffective,  the  landlord  in subsequent proceeding  under sec.  32 PP  would be  estopped

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from challenging the status of the applicant tenant. Such is not the  case. Otherwise on a challenge by the landlord in a proceeding under  sec. 32  PP the Tribunal have to determine the jurisdictional facts that (i) the applicant was a tenant on April  1, 1957  and  (ii)  that  the  sale  was  declared ineffective under  sec. 35G.  Therefore,  the  view  of  the Tribunal that  in a  proceeding u/s  32PP, the status of the applicant as  a tenant  is incontrovertible does not commend to us and is not correct.      Mr. Bobde  contended that once the view of the Tribunal is not  in consonance with law the only course open to us is to remit  the matter to the Tribunal. We are not inclined to accept the  submission for  the obvious reason that there is material on  record that  the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that  a  notice  was  sent  to  the  respondent  both  by  a registered post  and service  was sought  to be  effected by substituted service on the basis of tenancy record, his name appears in  the record of tenancy for certain years. Further the landlord  has not  put on  record his  statement in  the proceeding u/s  32G whether  he  disputed  the  status.  The landlord did  not take any step under sec. 15 after the sale was declared  ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by  the   landlord.   The   cumulative   effect   of   these circumstances would  affirmatively show  that the respondent was a  tenant and  if he  was a tenant on the relevant date, the Tribunal  was right in directing that the purchase price be determined.      This is  the only  point involved in this appeal. As we find no  merit in it, the appeal fails and is dismissed with costs. H.S.K.                                     Appeal dismissed. 999