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PETITIONER: JANBA (DEAD) THROUGH LRS

       Vs.

RESPONDENT: SMT.  GOPIKABAI

DATE OF JUDGMENT:       06/04/2000

BENCH: S.S.Ahmad, M.B.Shah

JUDGMENT:

     Shah, J.

     The question involved in this appeal is with regard to the  interpretation  of Section 50(1) of Bombay Tenancy  and Agricultural  Lands (Vidarbha Region) Act, 1958 (hereinafter referred  to as the Tenancy Act) which inter alia provides that  where tenancy is created after 01.4.1963, every tenant holding   land  under  such   tenancy  and  cultivating   it personally  shall  be entitled to purchase during  one  year from the commencement of the tenancy so much of such land as he  may  be  entitled to purchase under Section 41  and  the provisions of Sections 41 to 44 shall mutatis-mutandis apply to  such  purchase.   For this purpose,  as  provided  under Section  43 he is required to make an offer to the  landlord stating  the price at which he is ready to purchase the land and such price shall not exceed 12 times the rent payable by him.   It is the contention of the appellant-tenant that  as the  respondents-landladies  were  widows,   his  right   to purchase  the  land is postponed under Section 41(2) of  the Tenancy  Act till their disability ceases.  As against this, the  High  Court  of  Bombay   by  impugned  judgment  dated 05.7.1985 in Special Civil Application No.792/1975 held that Section  41(2)  would not be applicable in case of  purchase specified  under  Section  50.  That judgment and  order  is challenged by filing this appeal.

     Before  dealing  with  the contentions raised  by  the learned  counsel  for the appellant it is to be stated  that during  the  proceedings, respondent No.1, Smt.   Radhikabai widow  of  Laxmanrao  Wanjari   had  expired.   Civil  Misc. Petition No.19711 of 1986 was filed for deletion of her name stating that Radhikabai had expired leaving behind no person as  her legal heir.  Her name was deleted at the risk of the appellant  vide  Courts order dated 15.3.1999 made  in  the said CMP.

     For  deciding  the question involved, we  would  first mention  a few facts of the case.  On 16.1.1967  respondents who  were  widows  of one Laxmanrao Wanjari applied  to  the Tehsildar,  Kelapur  for  a declaration that  the  appellant

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herein  was not a tenant of the land bearing Survey Nos.1/1, 2  acres 28 gunthas and 3/1A, 6 acres 39 gunthas of  village Hirapur  and  his possession of the land was illegal and  in the  alternative  for  possession under Section  50  of  the Tenancy  Act  as the tenant had not exercised his  right  of purchase  within one year from the commencement of the  said provision.   The  appellant contended that  the  respondents being  widows, his right to purchase stood postponed for two years  after the cessation of interest of the respondents in view  of  Section 41(2) of the Tenancy Act.  The matter  was considered by various authorities and ultimately reached the High Court in Special Civil Application NO.505 of 1969.  The High  Court  remanded the matter to the Tehsildar for  fresh decision.   After  remand  the Tehsildar  vide  order  dated 22.2.1972  held that the appellant was tenant since  1964-65 and  that he was not entitled to purchase the said land till after the expiry of two years from the cessation of interest of  the  widow,  hence  the application  was  rejected.   In appeal,  the  Appellate  Authority   vide  its  order  dated 31.12.1973  held that the appellant had never been a  tenant and  directed the respondents to seek appropriate remedy for restoration  of  possession.   The Tribunal by  order  dated 31.12.1974  allowed  the  revision by  restoring  the  order passed  by  the Tehsildar and holding that  the  respondents being  widows, the question of extension of time and  deemed surrender  did not arise at all.  The Tribunal further  held that  since  the respondents had not  preferred  application within six months of the accrual of the cause of action, the application  was  time  barred.   Against  the  said  order, Special  Civil  Application NO.792 of 1975 was filed  before the High Court.  In the High Court, it was the contention of the  appellant  that  Section 41(2) would be  applicable  in respect  of tenancies to which Section 50 of the Tenancy Act applied.  Hence, as the landladies were widows, the right to purchase  would  stand  postponed for two  years  after  the cessation  of  interest of the widows.  On the  other  hand, counsel for the respondents submitted that Section 50 of the Act  was  a  complete Code in itself and the  provisions  of section  41(2)  regarding  postponement  of  the  right   to purchase  would not apply.  The learned Single Judge of  the High  Court  held  that the claim for declaration  that  the appellant  was  not  a tenant was barred by  limitation  and decided  the matter by holding that the tenancy was  created after  1.4.1963.  The learned Single Judge also held that in the  facts of the case, Section 50 would be applicable.   On the  question  whether section 41(2) of the Act  applied  to such tenancies, the learned Judge referred the matter to the Division Bench of the High Court.  The Division Bench by the impugned  order  dated  5.7.1985 held that Section 50  is  a complete  Code in itself and that the provisions of  Section 41(2)  would not be applicable to such tenancies.  The Court held that the right to purchase having not been exercised by the  appellant within one year from the date of tenancy, the respondents were entitled to delivery of possession.

     For  proper understanding of scheme of Section 50  and its  interpretation,  it is necessary to refer  to  relevant parts  of Sections 41, 42, 43, 46, 49A and 50 of the Tenancy Act.

     Section  41.  Right of tenant to purchase land.   (1) Notwithstanding  anything to the contrary in any law,  usage or  contract but subject to the provisions of Section 42  to 44  (both inclusive) a tenant other than an occupancy tenant shall,  in  the  case of land held by him as  a  tenant,  be

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entitled  to purchase from the landlord the land held by him as a tenant and cultivated by him personally.

     (2)  Where the landlord is of the following  category, namely:  --

     (a) a minor,

     (b) a widow,

     (c)

     (d)  a  person  subject  to  any  physical  or  mental disability,

     such   tenant  shall  be   entitled  to  purchase  the landlords  interest under this section after the expiry  of two years from the date on which

     (i)  the  landlord of category (a)  attains  majority, (ii)  ...   (iii) the landlord of category (d) ceases to  be subject  to  such disability, and (iv) the interest  of  the landlord of category (b) in the land ceases to exist:

     Section  42.  Extent of land which tenant may purchase under  section 41.The right of a tenant under section 41 to purchase  from his landlord the land held by him as a tenant shall be subject to the following conditions, namely:--

     (a)  if  the  tenant  does   not  hold  any  cultivate personally  any land, as a tenure-holder the purchase of the land  by him shall be limited to the extent of three  family holdings;

     (b)  if the tenant holds any cultivates personally any land  as  a  tenure-holder the purchase of the land  by  him shall  be limited to such area as will be sufficient to make up  the  area of the land held by him as a tenure-holder  to the extent of three family holdings.

     Section  43 provides for the procedure for the  tenant to  make an offer, determination of purchase price, mode  of payment, etc

     Section 43(1) to (14)

     Section  43(14-A)--If  a tenant fails to exercise  his right of purchase under Section 41 in respect of any land or the purchase of any land becomes ineffective, the land shall be  deemed  to  have been surrendered to the  landlord,  and thereupon  the  provisions  of sub-sections (1) and  (2)  of Section  21  and Chapter VII shall apply to such land as  if the land was surrendered by the tenant under section 20.

     Section  44 deals with the amount of purchase price to be applied towards the satisfaction of debts.

     Section  46.  Transfer of ownership of land to tenants from  specified date.  (1) Notwithstanding anything in  this Chapter  or  any  law  for the time being in  force  or  any custom,  usage,  decree, contract or grant to the  contrary, with  effect  on and from the first day of April, 1961,  the ownership  of  all  lands  held by tenants  which  they  are entitled  to purchase from their landlords under any of  the provisions  of  this Chapter shall stand transferred to  and

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vest  in, such tenants and from such date such tenants shall be deemed to be the full owners of such lands:

     Provided  that  if on such date any such tenant is  of the following category, namely;-

     (a)  a minor, (b) a widow, (c) a serving member of the armed  forces,  or (d) a person subject to any  physical  or mental disability,

     the ownership of the land shall stand transferred

     (i)  to the tenant on the expiry of one year from  the date  on which the tenant of category (a) attains  majority, the  tenant  of category (c) ceases to serve in such  force, the  tenant  of  category (d) ceases to be subject  to  such disability;  and

     (ii)  in the case of a widow to her successor-in-title on the expiry of one year from the date on which the widows interest in the land ceases to exist:

     Provided  further  that where in respect of  any  such land,  any  proceeding under section 19,20, 21, 36 or 38  is pending  on  the  date  specified  in  sub-section  (1)  the transfer  of ownership of such land shall take effect on the date  on  which such proceeding is finally decided  and  the tenant retains possession of the land in accordance with the decision in such proceeding.

     Section  49(A).   Ownership of certain lands to  stand transferred  to  tenants  on Ist day of  April,  1963.   (1) Notwithstanding  anything  contained in section 41or 46,  or any custom, usage, decree, contract or grant to the contrary but  subject to the provisions of this section, on and  from the 1st day of April, 1963 the ownership of all land held by a  tenant (being land which is not transferred to the tenant under  section  46  or which is not purchased by  him  under Section  41  or 50) shall stand transferred to and  vest  in such tenant who shall, from the date aforesaid, be deemed to be  the full owner of such land, if such lands is cultivated by him personally, and

     (i)  the  landlord  has  not   given  notice  of   the termination  of tenancy in accordance with the provisions of sub-section  (1) of section 38 or section 39 or  sub-section (2) of section 39A;  or

     (ii)  the  landlord has given such notice but has  not made   an  application  thereafter   under  section  36  for possession as required by those sections;  or

     (iii)  the landlord (being a landlord not belonging to any  of  the  categories  specified in  sub-section  (2)  of section  38  has  not terminated the tenancy on any  of  the grounds  specified in section 19;  or has so terminated  the tenancy  but  has not applied to the Tahsildar on or  before the  31st day of March, 1963 under section 36 for possession of the land:

     Provided  that,  where  the  landlord  has  made  such application  for  possession then the tenant shall,  or  the date  on which the application is finally decided be  deemed to  be  the full owner of the land which he is  entitled  to retain in possession after such decision.

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     Section  50.   Rights  of tenants holding  land  under tenancy restored or created after specified date to purchase land.  (1) Where a tenancy is restored under Sections 7, 10, 21,  52  or  128A or is created by a landlord  not  being  a landlord  within  the meaning of Chapter III-A in  any  area after  the date specified in sub-section (l) of section 49A, every tenant holding land under such tenancy and cultivating it  personally shall be entitled to purchase within one year from the commencement or as the case may be, the restoration of the tenancy so much of such land as he may be entitled to purchase under section 41and the provisions of section 41 to 44  (both  inclusive) shall mutatis mutandis apply  to  such purchase.

     At  this stage we would mention that Section 50 of the Tenancy Act as applicable to Vidarbha region is consistently interpreted  by the High Court since years as stated in  the impugned  judgment.   The learned Single of the Bombay  High Court  in  Govinda v.  Udhao and Others [1972 Mh.L.J.   588] considered  the scheme of Sections 41 to 50 and pointed  out that  Section  50  as  it stood prior to  its  amendment  as enacted  in  December 1958 was as under:  - 50.   Right  of tenant  holding  land under tenancy created after  specified date  to purchase land:  - In the case of a tenancy  created in  any area after the date specified in sub-section (1)  of section 46, every tenant holding land under such tenancy and cultivating  it  personally  shall be entitled  to  purchase within one year from the commencement of the tenancy so much of such land as he may be entitled to purchase under section 41  and the provisions of sections 41 to 44 (both inclusive) shall mutatis mutandis apply to such purchase.

     The  Court  observed  that in its  original  form  the tenancies  which were covered by section 50 were those which were  created  after 1.4.1961 because that was the  date  on which  there was a statutory transfer of ownership in favour of  certain tenants who were entitled to purchase land under section  41  of  the  Tenancy Act.  It may  be  stated  that section  43 did not contain sub- section (14A) initially and the concept of a deemed surrender of land which is contained in  Section  43(14A)  did  not   become  relevant  prior  to 12.2.1962  when sub-section (14A) was for the first time put on  the  Statute book by Act NO.2 of 1962.  Section  50  was first  amended by Maharashtra Act 5 of 1961 and  sub-section (2)  was  added to that section.  Section 50 was then  again amended  by  Act No.2 of 1962 and it is as a result of  this amendment  that the section is in its present form, except a small  part  of  it which is the result of an  amendment  by Maharashtra  Act  No.39 of 1964.  The Court also  considered the amendment in Section 50 and observed:  -

     The  material amendment in this section was obviously the  result of the enactment of section 49-A in the  Tenancy Act  by  Maharashtra  Act No.  2 of 1962.  By  enactment  of section  49-  A  the legislature provided  for  a  statutory transfer  of  ownership of all land held by a  tenant  being land which is not transferred to the tenant under section 46 or  which  was  not  purchased by him under  section  41  or section  50  with  effect from 1.4.1963, if  such  land  was cultivated   personally  by  the   tenant  and  if   certain conditions which are set out in section 49-A were satisfied. Section  49-A operated notwithstanding anything contained in Section  41 or 46, or any custom, usage, decree, contract or

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grant  to  the  contrary.  Having provided for  a  statutory transfer of ownership with effect from 1.4.963 in respect of lands  held  by  a tenant on that day section  50  was  made applicable  in respect of tenancies created after  1.4.1963. Section  50  did not provide only for tenancies  which  were created  after  1.4.1963  but it also dealt  with  tenancies which were restored either under section 7 or 10 or 52 or 28 or  128-A  of the Tenancy Act.  This section  provided  that every  tenant  holding land under such tenancy, that  is  to say,  a  tenancy  which was restored under any  one  of  the sections  referred  to in that section, or under  a  tenancy created  after 1.4.1963, by a landlord not being a  landlord within  the meaning of Chapter III-A of the Tenancy Act,  if he  was cultivating the land held by him under such  tenancy personally he shall be entitled to purchase that land within one  year  from the commencement or from the restoration  of the tenancy as the case may be.

     After  considering the aforesaid scheme with regard to Section  50,  the Court held that:  - Section 50 refers  to section  41  twice.   The first reference has been  made  in order to indicate the extent of the land which the tenant is entitled  to  purchase under section 50 of the Tenancy  Act. The  material words of the section minus all the  adjectival clauses  would  be  every tenant holding  land  under  such tenancy  and cultivating it personally shall be entitled  to purchaseso  much  of  such land as he may  be  entitled  to purchase  under section 41 The words such land refers to the  land  which  he  holds   under  tenancy  and  which  he cultivates personally.  When it is to be decided whether the tenant  is  entitled  to purchase the entire land  which  he holds  under tenancy and which he cultivates personally, the reference  to section 41 becomes material.  The section says that the tenant is entitled to purchase only so much land as he may be entitled to purchase under section 41.  Section 41 deals  with the right of a tenant to purchase land and  this right  is  subject to the provisions of section 42 in  which the  extent of the land which the tenant may purchase  under section  41 is set out.  The words which the tenant may  be entitled to purchase under section 41 has obvious reference to  the restriction in section 42.  The reference to section 41 is for a specific purpose, namely, to find out the extent of land which the tenant is entitled to purchase.

     Thereafter  the  Court  referred  to  Section  42  and relevant  part  of  Section  43,  particularly,  (14-A)  and observed:-

     This  sub-section  set  out the consequences  of  the tenant  failing  to  exercise the right  of  purchase  under section  41, which, in view of the provisions of section 50, must  also follow where a tenant fails to exercise his right of  purchase  under section 50 and it also provides for  the consequences   of   the  purchase  of  any   land   becoming ineffective.   The  consequences are that the land shall  be deemed  to  have  been  surrendered   to  the  landlord  and thereupon  the  provisions  of sub-sections (1) and  (2)  of section  21  shall  apply to such land as if  the  land  was surrendered by the tenant under section 20.  The consequence which  is set out in this section is that the land is deemed to  have  been  surrendered to the landlord and  after  such surrender an enquiry is required to be made having regard to the provisions of section 21 (1) and (2) about the extent of

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the land which the landlord is entitled to retain with him.

     The   Court  finally  held   that   the   consequences contemplated  by  section 43(14-A) of the Tenancy Act  would arise  only  if  the tenant fails to exercise his  right  to purchase within one year.

     The   aforesaid  judgment  was   again  referred   for re-consideration  by Division Bench in Vikram Yeshwanta  and Others  v.  Eknath Trimbak Gadekar and Others [1977  Mh.L.J. 520].   The Division Bench held that they were in  agreement with  the  view  taken by the learned Single  Judge  in  the aforesaid  case.   The Division Bench reiterated that  on  a proper  reading  of sections 50 and 43(14-A) of the  Tenancy Act,  the right to obtain possession will be deemed to  have accrued  to the landlord as soon as there is failure on  the part  of the tenant to purchase the land within one year  as contemplated  by  section 20.  The aforesaid  judgments  are followed  in  the impugned judgment and order passed by  the Division  Bench.   Section  50 of the Tenancy Act  has  been interpreted  in  the manner stated above by the  High  Court consistently  and  it  would not be proper  to  disturb  the course   of  decisions  by   interpreting   that   provision differently  after  about three decades.  This Court in  Raj Narain  Pandey and Others v.  Sant Prasad Tewari and  Others [(1973)  2 SCC 35] held that in the matter of local statute, the  view  taken  by the High Court over a number  of  years should  normally be adhered to and not disturbed.  The Court further observed:  -

     A  different view would not only introduce an element of  uncertainty and confusion, it would also have the effect of  unsettling  transactions which might have  been  entered into on the faith of those decisions.  The doctrine of stare decisis  can  be  aptly  invoked in such  a  situation.   As observed  by  Lord  Evershed M.R.  in the case  of  Brownsea Haven  Properties  v.   Poole Corpn., [1958 Ch  574  (CA)  : (1958 1 All ER 205], there is well-established authority for the  view  that a decision of long-standing on the basis  of which  many persons will in the course of time have arranged their  affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision.

     The  aforesaid observations are referred to and relied upon  in  Darshan Singh etc.  v.  Ram Pal Singh and  Another etc.  [(1992) Suppl.  1 SCC 191, para 33].

     Further,  considering the reasons recorded in Govinds case  (supra), we do not think that the impugned order calls for any interference.  Section 50, as quoted above, in terms provides  that  (i) in case where tenancy is restored or  is created  by  a  landlord  not being a  landlord  within  the meaning  of  Chapter III-A i.e.  landlords who are  or  have been  members of the armed forces, tenant would be  entitled to  purchase  within  one  year  from  the  commencement  or restoration  of  the  tenancy;   (ii) the  tenant  would  be entitled  to purchase so much of such land as he is entitled to  purchase under Section 41 and (iii) to such purchase the provisions  of  Sections  41 to 44  shall  mutatis  mutandis apply.  Therefore, it is apparent that the scheme of Section 50  is  different  from  Section 41.  Section  41  talks  of purchase of the land by a tenant and carves out an exception as  provided  in  sub-section (2) in favour of  landlord  of specified  categories  (minor,  widow or person  subject  to

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physical  disability).  As against this, under Section 50 no such exception is carved out in favour of landlord or tenant who  is a minor, a widow or a person subject to any physical or mental disability.  Prescribed time limit for exercise of such  option  to  purchase the land is only  one  year.   No provision  is made for postponing such right to purchase, if landlord  or  tenant  is minor, widow  or  disabled  person. Section  42 provides the extent of land which the tenant may purchase  under  Section 41 and limit is prescribed  on  the basis  of three family holdings.  Family holding is  defined under  Section  2 (13) to mean a family  holding  determined under  Section  4 in respect of land situated in that  local area.   Section  43  provides the procedure  for  making  an offer,  determination of purchase price and its payment  and consequences  of  non- payment.  Section 44 makes  provision that  in case there are encumbrances lawfully subsisting  on the  land,  the purchase price is to be applied towards  the satisfaction  of the encumbrances and the procedure for that purpose.

     As  against  this,  Section  46  provides  for  deemed purchase  of the lands held by the tenants with effect  from 01.4.1961.   A specific provision is made in case where  the tenant is a minor, a widow, a serving member of armed forces or  a  person  subject  to   any  physical  disability,  the ownership  of  the land stands transferred after the  period specified therein.  However, similar benefit is not given in favour  of  landlord  of  such  category.   Thereafter,  the legislature  inserted Section 49 (A) by Maharashtra Act 2 of 1961  providing  that notwithstanding anything contained  in Sections 41 and 46 from 01.4.1963 the ownership of land held by  a  tenant, which is not transferred to the tenant  under Section 46 or which is not purchased by him under Section 41 or  Section 50, shall stand transferred to and vest in  such tenant  who shall, from the date aforesaid, be deemed to  be the  full owner of such land, if such land is cultivated  by him  personally.   This  purchase is subject to a  rider  as stated  in  the  proviso that where a landlord has  made  an application for possession under Section 38 or 39, then such purchase  shall  be,  on the date on  which  application  is finally  decided, of the land which he is entitled to retain possession  after  such decision.  In context  of  aforesaid sections, it is apparent that scheme of Section 50 is to see that  either the tenant purchases the land or restores  back the  possession  of the land to the landlord.   It  provides that  in  case  where tenancy is created or  restored  after 01.4.1963,  the  tenant  is entitled to  purchase  the  land cultivated  by  him  to the extent mentioned in  Section  42 within  one  year  from  the date  of  commencement  of  the tenancy.   If  there  is  failure to  exercise  such  right, consequences provided in Section 43 (14A) would follow.

     Mr.    Uday  U.   Lalit,   learned  counsel  for   the appellants  submitted that Section 50 specifically  provides that  provisions of Sections 41 to 44 would mutatis mutandis apply  and,  therefore, sub-section (2) of Section 41  would automatically  apply and the right of the tenant to purchase the  land  is  postponed till period prescribed  therein  is over.

     This  submission,  in  our view,  cannot  be  accepted firstly  because Section 50 only provides that tenant  would be  entitled  to purchase so much of such land as he may  be entitled to purchase under Section 41 and to such purchase the  provisions of Sections 41 to 44 would mutatis  mutandis

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apply.   The  concept of mutatis mutandis as  understood  in context  of Section 50 would be  Sections 41 to 44 would be applicable with necessary changes in the points of detail to such  purchase,  that  is  to  say,  where  a  tenant  has exercised  his right to purchase the land he can purchase it to  the  extent permissible under Section  42.   Thereafter, those  parts  of  Sections  which are  pertaining  to  such purchase  are  made applicable but there is no question  of postponing  such purchase as provided under Section 41(2). Sub-section  (2)  can  not  be made applicable  in  case  of purchase  under  Section 50, as it does not pertain  to  the purchase  but  it  is with regard to postponement  of  such purchase.   This  is  consistent   with  other  provisions, namely,  sections  46  and 49(A).  Under Section  46  deemed purchase  is  provided from 01.4.1961 except in those  cases where tenant was a minor, a widow, a serving member of armed forces  or  a  person  subject to  any  physical  or  mental disability  and in those cases deemed purchase was postponed till  the  disability  ceased  as  mentioned  therein.    No exception  is  carved  out in favour of landlord  who  is  a minor,  widow or disabled person.  Finally Section 49(A) was added  which  inter  alia   provides  that   notwithstanding anything  contained  in Section 41 or 46 ownership  of  land held  by a tenant being land which is not transferred to the tenant  under  Section 46 or which is not purchased  by  him under  Sections 41 or 50 shall stand transferred to and vest in such tenant and from that date he shall be the full owner of  such land, if such land is cultivated by him personally. Exception  is carved out in favour of the landlord belonging to  any  of the categories specified in sub-section  (2)  of Section  38 i.e.  in favour of a minor, a widow or a  person subject  to  any  physical or mental  disability.   No  such exception is carved out under Section 50.  Secondly, section 50  specifically  provides  that every tenant  holding  land under  such tenancy i.e.  tenancy created or restored  after 01.4.1963,  and cultivating it personally shall be  entitled to  purchase within one year from the commencement or as the case  may be, the restoration of the tenancy so much of such land  as  he may be entitled to purchase under  Section  41. That  period  of one year cannot be changed by holding  that sub-  section (2) would be applicable and such purchase is to  be  postponed for an indefinite period i.e.   after  two years  from  the  date  of cessation of  disability  of  the landlord.   If this contention is accepted, such  purchase would be postponed for a period of two years after happening of  uncertain  eventuality, namely, minor landlord  becoming major,  widow  ceasing  to be owner or in case  of  disabled person,  till  cessation of mental or  physical  disability. That  is neither the intention of the legislature nor it  is provided.   What  is  provided for is  to  such  purchase Sections 41 to 44 mutatis mutandis shall apply.

     In  the  result, in our view, the reasons recorded  by the  High  Court  do  not  call  for  any  interference  and therefore,  the appeal requires to be dismissed.  The  Civil Appeal is, accordingly, dismissed with no order as to costs.