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PETITIONER: MADHARAO RAJESHWAR DESHPANDE

       Vs.

RESPONDENT: SHANKER SINGH & ORS.

DATE OF JUDGMENT: 24/02/1970

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. HEGDE, K.S.

CITATION:  1971 AIR 1659            1970 SCR  (3) 809

ACT: Bombay  Tenancy and Agricultural Land (Vidharbha  and  Kutch Area)  Act 99 of 1958 as amended by Act 2 of 1962,  ss.  41, 42, 43 and 46--Scope of.

HEADNOTE: The  appellant was the owner of certain land and  the  first respondent was the protected lessee.  In 1963, the appellant filed  a petition for possession of the land on  the  ground that  the first respondent failed to exercise his  right  of purchase  under  s.  ’  41(1)  of  the  Bombay  Tenancy  and Agricultural Land (Vidharbha and Kutch Area) Act, 1958.  The authorities under the Act held that the tenant had become  a statutory  owner  from  April 1, 1961, under  s.  46(1)  and dismissed  the  petition.  In the High Court  the  appellant raised  for  the first time, the contention  that  under  s. 42(c) of the Act the appellant should have been left an area not less than one family holding (that is about 26  -acres), that  s, 46(1) was applicable only when the condition in  s. 42(c)  was  satisfied,  that under  s.  43(14A),  which  was introduced  into  the  Act  by Act  2  of  1962.  the  first respondent  should  take  steps to  exercise  his  right  of purchase.  and since the first respondent did not do so,  he must be deemed to have surrendered the land to the appellant under  s.  43(14A).   The  High Court  did  not  accept  the contention. In appeal to this Court, HELD:     (1)  The appellant was not entitled to  raise  any contention  based on s. 42(c) as no foundation was laid  for doing  so  in the pleadings or at any prior state  till  the matter reached the High Court. [814 A-B] (2)  The  operation  of  s. 46(1) was not  affected  by  the subsequent  insertion of sub-s. 14A in s. 43, as it did  not have  any  retrospective operation.   Therefore,  the  first respondent  had become a statutory owner of the land in  his tenancy under s. 46(1), on April 1, 1961, even though he did not take any steps to purchase that land from the appellant. [814 B-C]

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2393  of 1966. Appeal  by special leave from the judgment and  order  dated March  1,  1966 of the Bombay High Court,  Nagpur  Bench  in Special Civil Application No. 190 of 1965. G.   L. Sanghi and A. G. Ratnaparkhi, for the appellant. D.   V. Patel, for the respondent. The Judgment of the Court was delivered by Grover,  J.  This  is  an appeal by  special  leave  from  a judgment  of  the Bombay High Court  dismissing  a  petition filed by the appellant under Art. 227 of the Constitution. L 10 Sup CI(NP)70-7 810 The  dispute relates to survey No. 284 having an area of  11 acres and 6 gunthas in Mouza Paras, Taluk Balapur,  District Akola.   The  appellant  is the owner of  this  field  while respondent  no.   1 is the protected lessee.   The  case  is governed  by  the Bombay Tenancy and Agricultural  Land  Act (Vidharbha  &  Kutch area) Act 99 of 1958  which  came  into force  on December 30, 1958, hereinafter called  "the  Act". In,  August 1963 the appellant filed an  application  before the  Tahsildar  under ss. 43(14A) and 36(2) of the  Act  for possession  of  the  aforesaid  field  on  the  ground  that respondent  No.  1  had  failed to  exercise  his  right  of purchase  in respect of that field under the  provisions  of the Act.  He must, therefore, be deemed to have  surrendered the  same  to the appellant.  The  Tahsildar  sustained  the defence  of respondent No. I that he had become an owner  of the  said field on April 1, 1961 under s. 46 of the Act  and dismissed  the application.  The order of the Tahsildar  was confirmed by the Deputy Collector (Tenancy Appeals) and  the Maharashtra Revenue Tribunal t0 whom the matter was taken in appeal and revision respectively.  It may be mentioned  that originally  the  appellant had. filed  applications  against three  of  his  tenants including respondent  No.    and  the tribunal  dismissed  by  one order all  the  three  revision petition  preferred  against the orders made  in  the  three cases.  The appellant, however, filed a petition under  Art. 227  of the Constitution challenging the order made  in  the case of respondent No.  alone. The  Act as originally enacted was amended by Act 2 of  1962 which came into force on March 1, 1962.  Chapter III related to termination of tenancies by landlords and special  rights of  tenants.   Sections  38,  39  and  39A  gave  rights  to different categories of landlords to terminate the tenancies of  their  tenants for bona fide  personal  cultivation.   A ceiling  was  fixed  with  regard  to  the  area  of   which possession could be claimed as also the minimum area of land which must be left with the tenant.  The tenants were  given the  right  to purchase land in the second part  of  Chapter III.  Section 41 (1) provided that subject to the provisions of  ss.  42 to 44 a tenant other than  an  occupancy  tenant would  be  entitled to purchase from the landlord  the  land held  by him as a tenant and cultivated by  him  personally. In  case  of  a  landlord  who  was-  under  some  kind   of disability,  namely, if the landlord was a minor or a  widow or a serving member of the armed forces or a person  subject to physical or mental disability the right to purchase  land of  such landlord accrued to the tenant after the expiry  of two  years  from  a  date prescribed in  the  case  of  each category of such landlord.  Section 42 as it stood on  April 1, 1961 was as follows:               "Extent  of  land which  tenant  may  purchase               under section 41.-The right of a tenant  under

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             s. 41 to purchase               811               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   and               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  and   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;               (c)   the  extent of the land  remaining  with               the landlord after the purchase of the land by               the  tenant whether to cultivate  personal  or               otherwise  shall not be less than  one  family               holding". Clause  (c)  was deleted by Act 2 of 1962  which  came  into force on March 1, 1962.  Section 43 prescribes the procedure which  was  to.  be followed by a tenant in  the  matter  of purchase  of the holding.  Section 46(1) made a  categorical provision  that notwithstanding anything in Chapter  III  or any  law for the time being in force or any  custom,  usage, decree,  contract or grant to the contrary the ownership  of all  lands  held  by tenants which  they  were  entitled  to purchase from their landlord under any of the provisions  of Chapter  III  was to stand transferred to and vest  in  such tenants  with effect from April 1, 1961 and from  such  date the tenants were to be deemed to be the full -owners of  the lands.   The first proviso contained provisions relating  to the  tenants  who  were under a disability  and  the  second proviso  laid down that where any proceeding under  ss.  19, 20, 21, 36 or 38 was pending on the date specified in sub-s. (1) in respect of any land the transfer of ownership of such land was to take effect on the date on which the  proceeding was finally decided and if the tenant retained possession of the   land   in  accordance  with  the  decision   in   such proceedings.   Under sub-s. (2) the tenant continued  to  be liable  t0  pay  to the landlord the rent of  the  land  the ownership of which stood transferred to him until the amount of  the  purchase price payable by him to the  landlord  had been determined under s. 48. Certain  amendments which were made by Act 2 of 1962 may  be noticed.  Sub-section 14A was inserted in S. 43 which was in these terms :               "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-sect ions  (1)               and (2) of section 21               812               and Chapter VII shall apply to such land as if               the  land was surrendered by the tenant  under               section 20".

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Section  49A provided for transfer of ownership of lands  to the tenants with effect from first day of April. 1963  where the land had already not been transferred by operation of S. 46  or where the tenant had not purchased it under S. 41  or S. 50. Before  the Maharashtra Revenue Tribunal the position  taken up  on  behalf   of the appellant was that  the  tenant  had failed to ,exercise his right of purchase in respect of  the field in his possession and therefore he should be deemed to have surrendered the same to the appellant by virtue of  the provisions  of S. 43 (14A) of, the Act.  The  tribunal  went into  the scheme of the Act and also considered the  Ceiling on  Holdings Act which was in force in the Vidarbha  Region. After referring to the relevant provisions of the Act it was observed  that the final stage for transfer of ownership  of land  to  the tenant was provided by ss. 46  and  49A.   The effect   of  the  Tenancy  Act  and  the  Ceiling   on   the Holdings’Act, according to the ’Tribunal, was that no person was  entitled  to  hold an area in excess  of  three  family holdings.   Under  the Act the maximum area which  he  could have resumed would have been three family holdings and  that also  if  he could prove that he bona fide required  it  for personal cultivation and was mainly dependent on the  income of that land for his maintenance.  The tenant was given  the right to purchase the land in his tenancy from the  landlord in  accordance  with S. 43.  If he did not  take  step.&  to acquire  the same he still became a statutory owner of  that land  by  virtue of S. 46 with effect from  April  1,  1961. Therefore  even if the tenant did not apply for purchase  of land  held by him he became an owner with effect from  April 1, 1961 subject to any other conditions as were laid down in the provisions of the Act.  This vesting of ownership in the tenant  was not affected by subsequent enactment  of  sub-s. (14-A)  by  Act 2 of 1962 which did not  have  retrospective operation. Thus,  according to the tribunal, even if respondent  No.  1 did  not apply under the relevant provisions of the Act  for purchasing  the  land comprising his tenancy  he  became  an owner thereof by virtue of the provisions of S. 46(1) and no tenancy rights were left which could be deemed to have  been surrendered  under s. 14A -which came into  existence  after April 1, 1961.  Although the provisions of S. 42(c), as they stood  before the amendment effected by Act 2 of 1962,  were not  pressed  at  any prior stage a  contention  was  raised before the High, Court that in accordance therewith the  ap- pellant  should  have been left an area not  less  than  one family  holding on independent calculation with  respect  to the land held by -each tenant.  The High Court repelled this contention by saying that it was not possible to accept such a construction of S. 42(c). 813 As  there was no proceeding pending for termination  of  the tenancy  of respondent No. 1 the conclusion of the  tribunal that respondent No, I had become a statutory owner on  April 1, 1961 was upheld. Before us an attempt was made on behalf of the appellant  to reiterate the contention based on the provisions of s. 42(c) as  it existed before the amendment made by Act 2  of  1962. It  was urged that one of the most important  conditions  of the  right  to  purchase was that the  extent  of  the  land remaining with the landlord after the purchase by the tenant (whether to cultivate personally or otherwise) shall not  be less  than  one family holding.  On December  30,  1958  the appellant  had no land whatever with him in his  possession. He was, therefore, entitled to retain an area to the  extent

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of one family holding which came to 26 acres.  By virtue  of the  provisions  of  s.  -42(c) respondent  No.  I  was  not entitled to purchase the entire land comprising his  tenancy as under s. 46(1) the ownership of land stood transferred to the  tenant  only if he was entitled to  purchase  from  the landlord such land.  As this condition was not fulfilled  in the  present  case owing to the provisions of  S.  42(c)  it followed that on April 1, 1961 the ownership of the land  in question  was not transferred to respondent No. I  under  s. 46(1).  This situation continued upto March 1, 1962 when the amending  Act came into force.  Sub-section (14-A) of s.  43 was one of the new provisions inserted by the Amending  Act. Respondent  No. 1, could, therefore, exercise his  right  of purchase  only  under s. 41 read with s.  43(14-A).   As  he failed  to  exercise his right under  those  provisions  the entire  land  in  his tenancy must be deemed  to  have  been surrendered  to the landlord, namely, the  appellant  before April 1, 1963 which was the relevant date for the purpose of the operation of s. 49-A.  We  are unable to accept any of the contentions  raised  on behalf of the appellant.  So far as the effect of s.  42(c), as  it  stood  before its deletion by the  amending  Act  is concerned, it was neither referred to nor relied upon before any  of  the revenue authorities including  the  Maharashtra Revenue  Tribunal.  The application which was filed  by  the appellant was not founded on any facts or pleas relevant  to s.  42 (c).  The contention as raised leads to  unusual  and strange  results.  If the appellant was entitled to an  area of 26 acres it is difficult to see how he could choose  only respondent  No.  I and leave out the other tenants  for  the purpose of retaining land not less than one family  holding. It is significant that the appellant had filed  applications on similar lines against two other tenants also.  After  the decision  of the tribunal had been given he did  not  pursue the  matter further which means-that he abandoned his  claim with regard to the lands in their tenancies.  Respondent No. , I has a holding with an area of little over 11 acres.   It is incomprehensible how the appellant could seek to  satisfy the requirements of s. 8 14 42(c)  by  demanding the entire area from respondent  No.  I alone.   We,  however,  do not wish  to  express  any  final opinion  on the scope and ambit of s. 42(c) because  we  are satisfied  that the appellant was not entitled to raise  any Contention based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court.  We concur in the view of  the tribunal  that respondent No. I became a statutory owner  of the  land  in his tenancy by Virtue of s. 46(1) of  the  Act with  effect from April 1, 1961 even though he did not  take steps to purchase that land from the appellant under s.  43. The  -operation  of S. 46(1) could not be  affected  by  the subsequent insertion of sub-s. (14-A) in s. 43 Which did not have retrospective operation. The appeal therefore fails and it is dismissed.  But in  the circumstances there will be no order as to costs. V.P.S.                                                Appeal dismissed. 815