http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: ANNA BHAU MAGDUM, SINCE DECEASEDBY HIS LEGAL REPRESENTATIVES

       Vs.

RESPONDENT: BABASAHEB ANANDRAO DESAI.

DATE OF JUDGMENT20/07/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) AHMAD SAGHIR S. (J)

CITATION:  1995 AIR 2164            1995 SCC  (5) 243  JT 1995 (5)   519        1995 SCALE  (4)538

ACT:

HEADNOTE:

JUDGMENT:           JUDGMENT S.C. AGRAWAL. J. :      This appeal  by special  leave is  directed against the judgment and  order dated April 8, 1994 of the High Court of Bombay in  Writ Petition  No. 2435  of  1981.  It  raises  a question  involving   interpretation   of   the   provisions contained in  sections 32-F  and 32-G  of the Bombay Tenancy and Agricultural  Lands Act 1948 (hereinafter referred to as ’the Act’).      Vijay Mala Jaisingrao Bhosale [for short ’Bhosale’] was the owner  of agricultural  land bearing  Survey  No.  178/1 measuring 1  acre 34  gunthas situate  at village  Shirte in District Kolhapur of the State of Maharashtra. The said land was leased out to Anna Bhau Magdum, the predecessor in title to the  appellants. By  a gift  deed dated September 4, 1953 Bhosale gifted  the said  land  to  the  respondent  herein, Babasaheb Anandrao Desai. The respondent was a minor at that time - his date of birth being 17th January, 1947. By Bombay Act 13  of 1956 the Act was amended to confer special rights and privileges  on tenants.  By virtue  of  section  32,  as amended, it  was declared  that on 1st April 1957, described as  "the   tillers  day",   every  tenant   satisfying   the requirements of clauses (a) and (b) of sub-section (1) shall be deemed  to have purchased from his landlord the land held by him  as tenant  free  from  all  encumbrances  subsisting thereon on  the said land held by him as a tenant. This was, however, subject to the provisions of Part II of Chapter III of the  Act, viz.,  Sections 32A  to 32-R. Section 32-G lays down the  procedure for determining the price of the land to be paid  by the  tenant and  section 32-F  contains  special provisions in  cases where  the landlord  was a  minor, or a widow, or  a  person  subject  to  any  mental  or  physical disability on  1st  April,  1957.  The  respondent  attained majority on January 17, 1965. Proceedings under section 32-G of the Act were started in respect of the said land in 1960,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

but in  view of  the fact  that the landlord was a minor the said  prceedings   were  dropped   by  an  order  dated  2nd September, 1966  passed by  the Agricultural Lands Tribunal, Shirole.  Thereafter,   in  1975,  fresh  proceedings  under section 32-G  were started  before the  Additional Tehsildar and Agricultural  Lands Tribunal,  Shirole. After making the necessary inquiry  the Additional Tehsildar and Agricultural Lands Tribunal passed an order dated August 27, 1975 holding that the tenant has lost his right to purchase the suit land and declared that the purchase of the land by the tenant has become ineffective  under section  32-G(3) of  the Act.  The said order  was set  aside on  appeal by  the  Special  Land Acquisition Officer,  Tulsi Project, Kolhapur by order dated February 21,  1977  and  the  matter  was  remanded  to  the Additional Tehsildar  and Agricultural  Lands  Tribunal  for holding  a   fresh  inquiry.   Thereafter,  the  Addittional Tehsildar and  Agricultural Lands  Tribunal, Shirole  passed the order dated March 19, 1980, whereby it was declared that tenant’s purchase  was ineffective  and it was directed that the land  should be disposed of by holding further inquiries under section  32-P(1). It  was held that in view of section 32-F (1A),  the tenant  could exercise his right of purchase by sending  an intimation  up to  January 17, 1967 and since the tenant  had failed  to send such an intimation his right of purchase  stood forfeited.  It was  also held that by the amendment incorporated  in Section  32-F(1A) by  Maharashtra Act 49 of 1969 a further opportunity was given to the tenant to exercise  his right of purchase by sending the intimation upto October  17, 1971  and that  even during this period of extension the tenant did not avail of the opportunity and in the circumstances the right of purchase of the tenant became automatically ineffective  and  he  had  become  liable  for summary eviction  under section 32-P(1). The appeal filed by the  tenant   against  the  said  order  of  the  Additional Tehsildar and  Agricultural Lands  Tribunal was dismissed by the Sub-divisional  Officer, Karvir  Division,  Kolhapur  by judgment dated  September 10, 1980. The revision application filed by  the tenant  against the  said judgment of the Sub- divisional Officer  was dismissed by the Maharashtra Revenue Tribunal by judgment dated March 17, 1981. The writ petition filed by  the tenant has been dismissed by the High Court by the impugned judgment. Hence this appeal.      The question  which falls  for consideration is whether the tenant  was entitled  to avail the right conferred under the Act  to purchase the land held by him. It is, therefore, necessary to  briefly refer  to the  relelvant provisions of the Act.  On January  17, 1965  the said  provisions read as follows:                "32(1) On  the  first  day  of      April 1957  (hereinafter referred  to as      "the tillers’  day") every tenant shall,      subject to  the other  provisions of the      this section  and the  provisions of the      next succeeding  sections, be  deemed to      have purchased  from his  landlord, free      of all  encumbrances subsisting  thereon      on the said day, the land held by him as      a tenant, if -      (a) such  tenant is  a permanent  tenant      thereof and cultivates land personally.      (b)  such  tenant  is  not  a  permanent      tenant  but  cultivates  the land leased      personally: and      (i) the landlord has not given notice of      termination of his tenancy under section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

    31; or      (ii) notice has been given under section      31; but  the landlord has not applied to      the Mamlatdar  on or before the 31st day      of March,  1957  under  section  29  for      obtaining possession of the lands: or      (iii) the  landlord has  not  terminated      this  tenancy  on  any  of  the  grounds      specified  in  section  14,  or  has  so      terminated  the   tenancy  but  has  not      applied to  the Mamlatdar  on or  before      the 31st day of March 1957 under section      29 for obtaining possession of the lands      :      Provided that  if an application made by      the  landlord   under  section   29  for      obtaining possession  of  the  land  has      been rejected by the Mamlatdar or by the      Collector in  appeal or  in revision  by      the Maharashtra  Revenue Tribunal  under      the procisions  of this  Act, the tenant      shall be  deemed to  have purchased  the      land on  the date  on  which  the  final      order of  rejection is  passed. The date      on which the final order of rejection is      passed is  hereinafter  referred  to  as      "the postponed date" :      Provided further  that the  tenant of  a      landlord who  is entitled to the benefit      of the  proviso to  sub-section  (3)  of      section  31  shall  be  deemed  to  have      purchased the  land on  the 1st  day  of      April 1958,  if  no  separation  of  his      share has  been effected before the date      mentioned in that proviso."      "32-F(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 :      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  seperated by  metes and bounds      and  the   Mamlatder   on   inquiry   is      satisfied that  the share of such person      in the  land seperated, having regard to      the area, assessment, classification and      value  of   the  land,   in   the   same      proportion as  the share  of that person      in the entire joint family property, and      not in a larger proportion.      xx         xx         xx         xx      (1A) A tenant desirous of exercising the      right conferred on him under sub-section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

    (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.      (2) The provisions of sections 32 to 32-      E (both  inclusive) and sections 32-G to      32-R (both  inclusive) shall, so far as,      may  be   applicable,  apply   to   such      purchase."      "32P(1) Where  the purchase  of any land      by  tenant   under  Section  32  becomes      ineffective under  section 32G or 32M or      where a  tenant fails  to  exercise  the      right to  purchase the  land held by him      within  the   specified   period   under      section 32F,  320,  33C  or  43-1D,  the      Tribunal  may   suo  motu   or   on   an      application made  in this  behalf and in      cases other  than  those  in  which  the      purchase  has   become  ineffective   by      reason of  section  32G  or  32M,  after      holding a formal inquiry direct that the      land shall  be disposed of in the manner      in sub-section (2).      (2) Such direction shall provide -      (a) that  the former tenant be summarily      evicted;      xx                    xx            xx              xx      In Section 32-G provision is made for issuing of notice by the  Agricultural Lands  Tribunal  and  determination  of price of  land  to  be  paid  by  tenants.  Sub-section  (2) prescribes 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 and sub-section (3)  lays down  that where  any 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 tenant is not willing to purchase the land and that the purchase is ineffective. Under section 25-M the purchase becomes  ineffective in  the event  of  failure  of recovery of purchase price under section 25-K.      In the  instant case  the landlord was a minor on April 1, 1957,  the tillers’  day, and  the right of the tenant to purchase the land is governed by provisions of section 32-F.      In clause (a) of sub-section (1) of section 32-F it was prescribed that  where the landlord is a minor or a widow or a person  subject to  any mental or physical disability, the right of  the tenant  to purchase such land under section 32 would be  available within  one year  from the expiry of the period during  which the  landlord was entitled to terminate the tenancy  under section 31. The said period as prescribed in sub-section  (3) of section 31 was one year from the date on which  the minor  attains majority or the interest of the widow in  the land ceases to exist or the mental or physical disability of  the person ceases to exist. Under Clause (1A) the tenant  who was desirous to exercise his right conferred on him  under  sub-section  (1)  was  required  to  give  an intimation in  that behalf to the landlord as well as to the Agricultural Lands  Tribunal in the prescribed manner within the period specified in that sub-section, namely, within one year after  the  expiry  of  the  period  during  which  the landlord was entitled to terminate the tenancy under section 31. The  tenant was,  therefore,  required  to  give  notice before the  expiry of  the period of two years from the date the minor landlord attained majority.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

    By Maharashtra  Act 49  of 1969 certain amendments were introduced in section 32-F. In clause (a) of sub-section (1) of section 32-F the following words were inserted at the end of clause (a):      "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."      In sub-section  (1A)  of  section  32-F  the  following proviso was inserted:      "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 Lands 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."      These amendments  were prospective  in operation.  As a result of  the amendment  introduced in  clause (a)  of sub- section (1)  of section  32-F, the  landlord is  required to send an  intimation to  the tenant  of the  fact that he had attained majority  and the  said intimation  had to  be sent before the  expiry of  the  period  during  which  the  said landlord was entitled to terminate the tenancy under section 31. This provision appears to have been inserted with a view to enable  the tenant to know the date on which the landlord has attained  majority so  that he  can exercise  the  right conferred on  him and  send the necessary notice as required under sub-section (1A) of section 32-F. Since the respondent landlord had  attained majority  prior to  the insertion  of this provision,  it has  no application in the present case. The proviso  that has  been inserted  in sub-section (1A) of section 32-F conferred a further benefit on a tenant who had failed to  give intimation  as required by sub-section (1A), but was  in possession  of the  land  on  the  date  of  the commencement of  the Amendment  Act  of  1969  and  who  was desirous to exercise the right conferred upon him under sub- section 1(a)  of section  32-F.  Such  a  tenant  was  given further opportunity to give the intimation as required under sub-section (1A)  within a period of two years from the date of commencement  of  the  Amendment  Act  1969,  i.e.,  upto October 17, 1971.      In the  present case it is not disputed that the tenant did not  send any intimation as required by sub-section 1(a) either upto  January 17,  1967 or even upto October 17, 1971 as provided by the proviso under sub-section (1A) of section 32-F. Moreover,  the tenant in his statement given on August 25, 1960  before the Agricultural Lands Tribunal stated that he was aware that the respondent-landlord would be attaining majority on  January 17, 1965. Thus there was non-compliance on the part of the tenant with the provisions of sub-section (1A) of  section 32-F  of the  Act and  on that basis it has been held  that the  tenant could  not avail  the  right  of purchase conferred  under section  32 read with Section 32-F of the Act.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

    Shri  S.B.  Wad,  learned  counsel  appearing  for  the appellants, has  urged that  in view of section 32 read with Section 32-G  of the Act there was automatic purchase by the tenant of  the land  held by  him and  the purchase  can  be treated as  ineffective only  if the  tenant  indicates  his intention that  he is  not willing  to purchase the land and that mere  failure on  the part  of the  tenant to  send  an intimation under  sub-section (1A) of section 32-F would not result  in   rendering  the   purchase  by   the  tenant  as ineffective. According  to Ms.  Wad the  provision requiring sending an  intimation  contained  in  sub-section  (1A)  of section is not mandatory but directory in nature. In support of his  aforesaid submission Ms. Wad has emphasised that the provisions regarding  purchase of  land by  the tenant  have been enacted  as a  measure of  agrarian reform  to make the tiller of  the  soil  the  owner  of  the  land  and  remove intermediary between  tiller of  the soil  and the State. We are unable  to accept  this contention. By virtue of section 32(1) every  tenant is  deemed  to  have  purchasedfrom  the landlord free  from all  encumbrances subsisting  thereon on the tillers’ day, the land held by him as tenant. This right is, however,  subject to the provisions contained in section 32 itself  as well  as other provisions contained in Part II Chapter III  of the  Act. Clause  (a) of  sub-section (1) of section 32-F imposes a limitation on this right conferred on the tenant  where the  landlord is  a minor, or a widow or a person  subject  to  any  mental  or  physical  disabilityby prescribing that  this right to purchase has to be exercised within one  year from  the expiry of the period during which the landlord  is entitled  to terminate  the  tenancy  under section 31. Sub-section (1A) of section 32-F gives effect to this limitation  by imposing an obligation on the tenant who is desirous  of exercising  the right conferred on him under sub-section (1A) to give an intimation in that behalf to the landlord  in   the  prescribed   manner  within  the  period specified in  that sub-section.  These  provisions  indicate that there  is no  automatic purchase  of the  land  by  the tenant in cases where the landlord happens to be a minor, or a widow  or a  person subject  to  any  mental  or  physical disability and  the said right of purchase can be availed by the tenant  if he  complies with the requirements of section 32-F. In  Amrit Bhikaji  Kale &  Ors. v. Kashinath Janardhan Trade &  Anr., 1983  (3) SCC 437, this Court has referred to the distinction that has been made by the Act between a case where the  landlord is  under no  disability as envisaged in section 32-F  and a case where the landlord is of a class or category set out in Section 32-F. It has been observed :      "Section  32-F  postponed  the  date  of      compulsory purchase  by the tenant where      the landlord  is a minor or a widow or a      person subject  to  mental  or  physical      disability on  the tillers’ day. Section      32-F  has   an  overriding  effect  over      Section  32  as  it  opens  with  a  non      obstante clause.  The combined effect of      sections 32-F  and 32  would  show  that      where   the   landlord   is   under   no      disability as  envisaged by section 32-F      the tenant of such landlord by operation      of law would become the deemed purchaser      but where  the landlord is of a class or      category as set out in section 32-F such      as a  minor, awidow  or a person subject      to any  mental or  physical  disability,      the date  of compulsory  sale  would  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

    postponed as therein provided." [p.444]      It  cannot,   therefore,  be  said  that  there  is  an automatic purchase of the land by the tenant in a case where the landlord  happens to  be minor  or a  widow or  a person subject to any mental or physical disability as mentioned in section 32-F. In such a case the right of purchase conferred on the  tenant can  be effective  only if it is exercised in accordance with the provisions of section 32-F.      The contention  of Shri Wad that the provisions of sub- section (1A)  of section  32-F are  not  madatory  but  only directory  in   nature  and  non-compliance  with  the  said provisions does  not render  the purchase ineffective cannot be accepted  for the reason that sub-section (1A) of section 32-F prescribes  the condition for the exercise of the right conferred on  the tenant  under sub-section  1(a) of section 32-F and  the failure  on the  part of  the tenant to comply with the  requirements of  sub-section (1A)  would result in non-exercise of the right of purchase by the tenant and as a result the tenant should be treated as having not availed of the right that has been conferred on him. Apart from the use of the  word "shall" in sub-section (1A) an indication about the mandatory  nature of the said provision is also given by the proviso to sub-section (1A) inserted in 1969 whereby the tenant who  had failed  to give an intimation as required by sub-section (1A),  but was  in possession of the land on the date of  commencement of  the Amendment  Act of 1969 and was desirous of exercising the right conferred under sub-section 1(a), was  permitted to give such intimation within a period of two  years from the date of commencement of the Amendment Act of  1969. Furthermore, we find that the consequences for non-compliance with  the provisions  in sub-section  (1A) of Section 32-F are laid down in section 32-P (1) wherein it is providedthat where  a tenant  fails to exercise the right to purchase the  land held  by him  within the specified period under section  32-F the  Tribunal may  suo  motu  or  on  an application made  in this  behalf  after  holding  a  formal inquiry direct  that the  land shall  be disposed  of in the manner provided  in sub-section  (2). Such a direction could provide  for   summary  eviction  of  the  tenant.  We  are, therefore,  of   the  opinion   that  requirement  regarding intimation by  the tenant  to the  landlord prescribed under sub-section (1A)  of Section 32-F is mandatory in nature and the failure on the part of the tenant in the present case to give  such   an  intimation   to  the  landlord  within  the prescribed period  has resulted  in the tenant having failed to avail  the right  to purchase conferred on him and it has been rightly  held that the tenant having failed to exercise the right to purchase conferred on him by the Act was liable to summary eviction under section 32-P(1) of the Act.      Shri Wad  has urged  that in Amrit Bhikaji Kale (supra) the tenant  had made  an express  statement before  the Aval Karkoon in proceedings under section 14 read with section 29 of the  Act that  he  had  become  old  and  was  unable  to cultivate the  land and  was willing to hand over possession and that  in spite  of the said statement this Court did not attach any  importance to  the said  statement and the court has observed :      "We are not unaware of the landed gentry      exercising  such   influence  over   the      tenants that  in the  absence  of  legal      litercy  they  may  make  any  statement      contrary  to   their  legally  protected      interest. A  measure of  agrarian reform      cannot be  permitted to  be defeated  by      such  devious   means  adopted   by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

    landlords."      The submission of Shri Wad is that if express statement made by  the tenant  could not  stand  in  the  way  of  his availing the  right conferred by the Act, there is no reason why merely  because of  inaction on his part a tenant should be deprived  of the  right. The  observations aforementioned made in  Amrit Bhikaji  Kale (supra)  have to be read in the context of  the facts  of that  case where it was found that the landlord  who was major and was under no disability, was alive on  April 1,  1957 and  the provisions of section 32-F were not attracted and there was deemed purchase of the land by the  tenant by  virtue  of  section  32.  The  subsequent statement made  by the tenant in proceedings before the Aval Karkoon were,  therefore,  held  to  be  of  no  avail.  The position in  the instant  case is,  however, different.  The respondent-landlord was  a minor  on April  1, 1957  and the case was  governed by  section 32-F  and there has been non- compliance of sub-section (1A) of section 32-F.      For the  reasons aforesaid,  we do  not find  any legal infirmity in  the judgment  of the  High Court.  The appeal, therefore, fails and it is accordingly dismissed, but in the facts and circumstances of the case without any orders as to costs.