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PETITIONER: RANGNATH

       Vs.

RESPONDENT: DAULATRAO AND ORS.

DATE OF JUDGMENT20/12/1974

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. MATHEW, KUTTYIL KURIEN BHAGWATI, P.N.

CITATION:  1975 AIR 2146            1975 SCR  (3)  99  1975 SCC  (1) 686  CITATOR INFO :  D          1977 SC 567  (23)  F          1977 SC 757  (36)  R          1977 SC1673  (9)  R          1980 SC1255  (11)  RF         1980 SC2056  (65)  RF         1985 SC 781  (16)  R          1986 SC2105  (17)  R          1990 SC1607  (20)

ACT: Natural   justice-Speaking  order-State   Government   while disposing a statutory appeal whether  bound to give personal hearing and to pass a speaking order. Hyderabad Abolition of Inams and Cash grants Act, 1954. Whether  tenancy  comes to an end on service  of  notice  of termination-Practice-Whether a ground contrary to one  taken all  throughout can be allowed to be raised at the stage  of arguments-Res judicata.

HEADNOTE: The  appellant was the Inamdar and respondent no. 1 was  the tenant  of  the suit land when the  Hyderabad  Abolition  of Inams  and Cash Grants Act, 1954 was made applicable to  the suit  ’land.   By  virtue of the  said  Abolition  Act,  the appellants Inam was abolished and it vested in the State. Before the Inam was abolished. the appellant terminated  the tenancy  of  first  respondent  by  a  notice  and  filed  a proceeding for eviction of the tenant Under the Tenancy Act. The  said  application was rejected by  the  Naib  Tahsildar before, the Inam was abolished.  However, after the Inam was abolisbed  on  an appeal the Deputy  Collector  allowed  the appellant  to  resume the suit land.  The  Revenue  Tribunal allowed the revision of respondent No. 1 on the ground  that after the abolition and vesting of the appellant’s Inam, the first respondent as a tenant in possession acquired all  the rights   of  an  occupant  tinder  the  Act.    During   the proceedings under the Inam Abolition Act, the     appellant contended  that  the respondent no.  1 did  not  become  the occupant  of   the   land.   The  Tahsildar   decided   that respondent no.  1 was a tenant in  possession           and, therefore,   acquired  the  rights  of  an  occupant.    The

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appellant filed an appeal before the State Government  under the   Abolition  Act  against  the  said  decision  of   the Tahsildar.   The State Government dismissed the said  appeal without  passing  a  speaking order  and  without  giving  a personal  hearing to the appellant.  The appellant  filed  a writ petition against the said order of the State Government which was dismissed- by the High Court.  The appellant filed a  writ  petition against the said judgment. of  the  Bombay High  Court.  It was contended before this Court,  (i)  that the  State  Government was not justified ’in  rejecting  the appellant’s  statutory appeal without giving him  a  hearing and  without passing any reasoned order. (ii) that the  inam in  question  was a service Inam and hence in  view  of  the provision of Law contained in section 102A(c) of the Tenancy Act the said Act was not applicable to the land in question; respondent  no.1  could therefore never be a tenant  of  the land. (iii) that the proceedings initiated by the  appellant for resumption of land under the Tenancy Act were all  ultra vires and without jurisdiction, there being no  relationship of landlord and tenant between the parties under the Tenancy Act.   Jurisdiction could not be conferred by  an  erroneous stand  of  the appellant that the first respondent  was  his tenant.  (iv)  In  any view of the matter  the  tenancy  was terminated by service of a notice under s. 44 and the filing of  the  application  under s. 32(2)  of  the  Tenancy  Act, against respondent no. 1. He was. therefore, not a tenant in possession  of the land on 1-7-1960 the date of  vesting  of the  Inam.  (v)  The High Court has committed  an  error  in holding  that its judgment in Special Petition No.  1881  of 1962 operated as res-Judicata on the question of  respondent no. 1 acquiring the eight of an occupant under section  6(1) of tile   Abolition of Inams Act. HELD : (1) It was not necessary for the State Government  to give   a   personal  hearing  to  the   appellant   or   his representative.  When in order is 100 liable  to  be  challenged under Arts. 226 and  227  of  the Constitution,  courts  insist  that an appeal  ought  to  be disposed  of  by  a speaking order  giving  reasons  in  its support.  It may not be possible in all cases to say that  a non-speaking  order is bad or invalid.  On the facts of  the case, the High Court rightly did not set aside the order  of the  State Government and remit back the appellant’s  appeal on  that ground.  No determination or adjudication of  facts was involved. [103A-D] (2)  Mere service of the notice terminating the tenancy and filing  an application for possession does not bring an  end to  the  tenancy.   Until  and  unless  the  possession  was directed  to  be delivered to the land  holder’  the  tenant continued  in possession as a tenant.  The decision  of  the full  bench of Bombay High Court-reported in 67  Bombay  Law Reporter 521 doubted. [104-F-G; 105-A-B] (3)  The appellant all along contended that the Inam was not a service Inam.  The said contention is contrary to the case of the appellant throughout. [103-F] (4)  The  appellant cannot contend that respondent no. 1  is not  a tenant.  The appellant all along  treated  respondent no.   1 as a tenant.  The appellant did not even  assert  in the  Statement  of  case  or  the  additional  grounds  that respondent no.  1 is not a tenant.  Respondent no.  1 was in cultivating possession and was paying rent to the appellant. It could not be in any capacity other than a tenant.  [103H- 104B] (5)  The  High Court rightly held that issue as  to  whether respondent  no.  1 acquired the right as an occupant or  not

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was barred on the principles of res judicata in view of  the decision of the High Court in the earlier petition, [105-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 30 of 1968. Appeal by Special Leave from the Judgment & Order dated  the 14th  October, 1966 of the Bombay High Court in W.P.  (Spl. C. Appln. of 1019 of 1965). B.   N. Lokur and A. G. Ratnaparkhi, for the Appellant. S.   T. Desai and R. B. Datar, for Respondent No. 1. M.   N. Shroff, for Respondent No. 2. The Judgment of the Court was delivered by UNTWALIA,  J.-In this appeal filed by special leave of  this Court it would be noticed that the appellant has endeavoured on  one  ground  or the other to get the  15  acres  and  14 Gunthas  of land in Osmanabad which at one time formed  part of  the erstwhile State of Hyderabad and eventually came  to be a part of the State of Maharashtra.  The disputed land is comprised in Survey No. 206/B.  There is no dispute that the appellant  was  the  Inamdar of this  land.   The  Hyderabad Abolition of Inams and Cash Grants Act, 1954 being Hyderabad Act  No. VIII of 1955 (hereinafter called the  Abolition  of Inams  Act,)  came  into force on  its  publication  in  the gazette on the 20th July, 1955.  The Abolition of Inams  Act was amended by the Hyderabad Abolition of Inams  (Amendment) Act,  1956 and was further amended by Bombay Act 64 of  1959 which came into force on 1st July, 1960.  It is no longer in controversy   that  the  Abolition  of  Inams   Act   became applicable to the appellant’s Inam by virtue of the  amended provisions on 1-7-1960 as a result of which under Section  3 appellants Inam was abolished and vested in the State.  Upon its  vesting,  certain consequences followed which  will  be adverted to hereinafter in this judgment. 101 The  first  round  of litigation started  by  the  appellant against  respondent no. 1 treating him as his  tenant  under the  Hyderabad  Tenancy  and Agricultural  Land  Act,  1950, Hyderabad  Act  No.  XXI of  1950  (hereinafter  called  the Tenancy  Act)  was  started by the appellant  by  serving  a notice on the first respondent under section 44 of the  said Tenancy Act.  The appellant claimed in that proceeding  that he bonafide required the land for cultivating it  personally and  hence after service of notice purporting  to  terminate the tenancy by the 31st day of December, 1958 him  proceeded to  file an application on 18-3-1959 for possession  of  the land  under  section  32(2) of the Tenancy  Act.   The  Naib Tehsildar,  Land Reforms, Osmanabad rejected the  resumption application  of the appellant by his order dated  22-10-1959 holding  against him on merits that he has made out no  case for  termination of the tenancy.  The appellant went  up  in appeal  which  was  allowed by  the  Deputy  Collector  Land Reforms Osmanabad by his order dated 25-5-1962.  The  Deputy Collector allowed the appellant to resume the disputed lands in  Survey  No.  206  holding  in  his  favour  on   merits. Respondent no. 1 went up in revision.  The Revenue  Tribunal allowed  the revision of respondent no. 1 by its order  made on 15-10-1962.  It took the view accepting a new stand taken on  behalf  of the tenant respondent,no.  1 that  after  the abolition  and  vesting  of the appellant’s  Inam  the  said respondent who was in possession of the land covered by  the Inam  as a tenant holding from the Jnamdar had acquired  all the  rights  of an occupant in respect of  such  land  under section  6  (1  )(a) of the Abolition  of  Inams  Act.   The

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appellant  moved the High Court of Bombay under Article  227 of  the Constitution of India in Special  Civil  Application No. 1881 of 1962.  Agreeing with the view of  the  Revenue Tribunal the Special Civil Application was dismissed by  the High Court on 26-9-1963. The second round of fight culminating in the present  appeal started  between the parties when proceedings under  section 2A  which  was introduced in the Abolition of Inams  Act  by section  6 of Bombay Act, 64 of 1959 were  initiated  before the  Officer  authorised by the State Government  to  decide certain  questions relating to Inams. The Tehsildar  gave  a notice  to respondent no. 1 for payment of price in lieu  of his having acquired the right of an occupant in the land  in accordance  with  section 6 of the Abolition of  Inams  Act. The   appellant  filed  his  objection  and  asserted   that respondent  no.  1 had not become the occupant of  the  land under  the, provisions of law aforesaid.  Various  questions were raised by him.  The Deputy Collector decided the matter in  the  first instance by his order dated  30-11-1962.   He held  that  the land was granted to the  appellant  for  his service  as Mahajan; it could, therefore, be deemed to be  a Watan land.  He further held that the provisions of  section 6 of Abolition of Inams Act were applicable and the date of vesting  of the Inam was 1st July, 1960 and not  20th  July, 1955.   Since he was not the Officer to decide the  question of  possession under section 6(1) of the Abolition of  inams Act, he remained content by saying in his order dated 30-11- 1962  "The land in question being the Watan land,  shall  be resumed  and vested in Government with effect from 1st  July 1960 and the person 102 in  possession of the land at the time of vesting  shall  be entitled to occupancy right under section 6(1) of the Act in respect  of the said land." He finally directed that a  copy of this order be sent to the Tehsildar Osmanabad for further necessary  action.  The Tehsildar by his order  dated  15-7- 1963  decided the matter in favour of the first  respondent’ and held him to be a tenant in possession of the land on the date of vesting of the Inam and hence a person acquiring the rights of an occupant under section 6(1).  The objection  of the appellant was rejected by the Tehsildar. The  appellant filed an appeal before the  State  Government under  section 2A(2) of the Abolition of Inams Act from  the decision of the Tehsildar.  The rejection of the appellant’s appeal by the State Government was communicated to him by  a letter  dated 27th November, 1964 of the Under Secretary  to the   Government   of  Maharashtra,   Revenue   and   Forest Department.  The appellant challenged the order of the State Government  in  Special Civil Application No. 1019  of  1966 under  Articles 226 and 227 of the Constitution of India  in the Bombay High Court.  A Bench of the High Court  dismissed his Writ Application by its judgment and order dated 1.4-10- 1966.  The appellant presented this appeal by special  leave of this Court. Mr.  B.  N. Lokur, learned counsel for  the  appellant  made following submissions in support of the appeal               1.    That   the  State  Government  was   not               justified   in   rejecting   the   appellant’s               statutory  appeal without giving him         a               hearing  and  without  passing  any   reasoned               order.               2.    That the Inam in question was a  service               Inam and hence in view of the provision of law               contained  in section 102A(c) of  the  Tenancy               Act  the  said Act was not applicable  to  the

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             land  in  question; respondent  no.   1  could               therefore never be a tenant of the land.               3.    That  the proceedings initiated  by  the               appellant  for  resumption of land  under  the               Tenancy  Act were all ultra vires and  without               jurisdiction,  there being no relationship  of               landlord and tenant between the parties  under               the  Tenancy res-judicata on the  question  of               respondent no. 1 acquiring the of an  occupant               under   section 6(1) of the Abolition of  Inam               Act.                4.   In  any view of the matter  the  tenancy               was  terminated by service of a  notice  under               section  44 and the filing of the  application               under  section  32(2)  of  the  Tenancy  Act,,               against respondent no. 1. He, was,  therefore,               not a tenant in possession of the land on  1-7-               1960 the date of vesting of the Inam.               5.    The High Court has committed an error in               holding that its judgment in Special  Petition               No. 1881 of 1962 operated the res-judicata  on               the question of respondent no. 1 acquiring the 103 In  our judgment none of the points urged on behalf  of  the appellant is fit to succeed. It  was  not necessary for the State Government  to  give  a personal   hearing  to  the  appellant  or  his   authorised representative  before disposal of his appeal.  As has  been repeatedly  pointed out by this Court the  State  Government ought  to  have  disposed of the  statutory  appeal  of  the appellant  filed  under section 2A(2) of  the  Abolition  of Inams  Act by a speaking order.  It may not be  possible  in all cases to say that a nonspeaking order is bad or  invalid on  that  account alone but when an order is  liable  to  be challenged under Articles 226 or 227 of the Constitution  of India, Courts do insist that an appeal of the kind filed  by the  appellant should be and ought to have been disposed  of by a speaking order giving some reasons in its support.  But on the facts and in the circumstances of this case the  High Court did not feet persuaded, and in our opinion rightly, to set  aside the order of the State Government and remit  back the  appellants appeal to them merely on that  account.   No determination  or  adjudication of facts  was  involved  The decision of the case rested on the points of law.  The  High Court did examine the question as to whether respondent  no. 1  could  not be a tenant of the appellant  because  of  the reason  that the Inam had been held to be a Watan  Inam  and consequently  according  to the appellant it was  a  service Inam.  In the present proceeding the High Court pointed  out that  respondent  no.   1  was  admittedly  the  appellant’s tenant.   Mere  service of notice under section  44  of  the Tenancy Act had not terminated the tenancy.  The  proceeding for  resumption  of the land under the Tenancy  Act  finally terminated   against  the  appellant  on  the  ground   that respondent  no.   1  could no longer be evicted  as  he  had acquired the right of an occupant under the Abolition of 1 On the finding recorded by the Deputy Collector in his order dated 30-11-1962 that the appellant held the Inam as a Watan for  the purpose of this case we shall assume in his  favour that  it was a service Inam and hence the provisions of  the Tenancy Act were not applicable.  But such a stand is wholly contrary to the appellant’s case in the previous proceedings for resumption of land.  Every where the appellant  asserted that respondent no. 1 was his tenant, so much so that in his Special  Civil Application No. 1881 of 1962 a copy of  which

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was  given  to us by Mr’ S. T. Desai,  learned  counsel  for respondent  no.  1, he had stated in paragraph 7  "That  the learned Member of the Tribunal has failed to apply his  mind to the provisions of Sec. 102(c) which was in force prior to the  substitution of new Section 102-A(c) of  the  Hyderabad Tenancy  and Agricultural Lands Act.  It does not  apply  to the case in question as the suit land is an Inam land not  a service  Inam,  so  the Tenancy Act  is  applicable  to  the present case." It is not open to the    appellant to  change his stand and then assert that the previous proceedings started by him for resumption of the land was ultra vires and  without jurisdiction  as the Tenancy Act was not applicable  to  the land.  The appellant than tried to urge that respondent  no. 1  could not be and was not a tenant of the land.  But  this contention  is also not open to the appellant.  No where  it has been. 104 asserted  by the appellant not even in the statement of  the case  and the additional grounds filed in this Court  except in the argument put forward by his learned counsel that  the Inamdar  of  the  kind the appellant Was, had  no  right  to induct  any tenant on the Inam land.  The fact remains  that respondent no.  1 was in cultivating possession of the  land in  question paying rent to the appellant since long  before the  vesting  of  the  Inam.  It could not  but  be  in  his capacity  as a tenant of the appellant.  It is not  open  to the  appellant to assert that the order made by the  Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding  in which there was inherent lack of jurisdiction in the  first authority and consequently the order was also a nullity. There  is no substance in the 4th submission of  Mr.  Lokur. Section 44(1) of the Tenancy Act reads as follows :               44(1)  "Notwithstanding anything contained  in               section 6 or 19 but subject to the  provisions               of  sub-sections (2) to (7),  landholder  (not               being  a  landholder  within  the  meaning  of               Chapter IV-C) may) after giving notice to  the               tenant   and   making   an   application   for               possession  as  provided  in  subsection  (2),               terminate  the  tenancy of any  land,  if  the               landholder  bonafide  requires  the  land  for               cultivating it personally.  " Section 32 prescribes the procedure of taking possession  of the  land  and  sub-section  (2)  says  "Save  as  otherwise provided  in  subsection (3A), no  landholder  shall  obtain possession  of any land or dwelling house held by  a  tenant except  under an order of the Tehsildar, for which he  shall apply  in the prescribed form within a period of  two  years from  the date of the commencement of the Hyderabad  Tenancy and Agricultural Lands (Amendment) Act, 1957, or the date on which the right to such possession accrued to him  whichever is later." Reading the wordings of sections 44(1) and  32(2) of  the  Tenancy  Act  it was not  possible  to  accept  the contention  put forward on behalf of the appellant  that  by mere  service  of notice and the filing of  application  for possession the tenancy had some to an end.  Until and unless possession was directed to be delivered to the landholder by the competent authority, the tenant continued in  possession and  continued  to be so as a tenant.  A full Bench  of  the Bombay  High Court in Dattatraya Sadashiv Dhond  v.  Ganpati Raghu Gaoli(1) expressed the view at page 529 "The manner in which  a tenancy is to be terminated is, however, laid  down in  section 44.  Under this section the  tenancy  terminates when after giving the requisite notice the landholder  makes

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an application for possession to the Tehsildar.   Thereafter the tenant’s possession is not unlawful, but it is not  held by  him as a tenant.  He has an estate in possession,  which he  will lose if the Tehsildar makes an order in  favour  of the  landholder.   If, however, the  Tehsildar  rejects  the application of the landholder, the termination of tenancy by the-landholder  will become ineffective.  The  tenancy  will revive and the tenant will continue in (1)  67 Bombay Law Reporter, 521. 105 possession  as  if  his tenancy had  not  been  terminated." Although the view so expressed by the Bombay High Court  may not be quite, accurate and the better view to take may be to say  that the process of termination of tenancy  started  by the service of notice and the filing of the application  for possession by the landholder is not complete until an  order for  possession  is  made by the  competent  authority  and, therefore, there is no termination of tenancy until an order for  possession  follows in the process, the  matter  become beyond the pale of controversy in view of rule 28(5) of  the Hyderabad  Tenancy  and  Agricultural Lands  Rules  made  in accordance  with sub-section (10) of section 44 of the  Act. Sub-section (10) empowers the State Government to provide by rules  the  time when the termination of tenancy  will  take effect  and  rule  28(5) says that on the  granting  of  the application   for   possession  the  tenancy   shall   stand terminated  from the commencement of the year following  the year in which the application is granted.  It is, therefore, clear  that the tenancy did not come to an end by  the  mere service  of notice and the filing of the application by  the appellant  against respondent no.  1 under the Tenancy  Act. He was a tenant when the Inam of the appellant vested in the State  on  the 1st of July, 1960.  Indisputably, he  was  in possession  of  the  land on  that  date.   Consequently  he acquired the rights of an occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The  High Court was also right in holding that the issue  as to  the  acquiring by respondent no.  1 of the right  of  an occupant  was  barred on the principles of res  judicata  in view  of the previous decision in the earlier Special  Civil Application.   Neither  the Revenue Tribunal  nor  the  High Court in the earlier proceeding went into the merits of  the appellant’s  claim for resumption of the land.  It  defeated him on the ground that since respondent no.  1 had  acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the  Tenancy Act  had got to fail.  The issue directly and  substantially fell for determination in the earlier case.  It was  decided against the appellant and he cannot re-agitate the very same question in this proceeding. For  the  reasons  stated  above the  appeal  fails  and  is dismissed with costs to Respondent No. 1 above. P.H.P.                              Appeal dismissed. 106