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cASE NO.: Appeal (civil) 1823 of 1998 PETITIONER: Ramakant Dattatraya Deshpande

RESPONDENT: Dadu Bhagoji Patil (D) thru. LRs. & Ors.

DATE OF JUDGMENT: 12/12/2003

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: J U D G M E N T

Dharmadhikari J.

       The petitioner is ’landlord’ of the lands involved, within the  meaning of provisions contained in Chapter III of the Bombay  Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as  ’the Act’).  The petitioner feels aggrieved by the impugned order  dated 17th November 1997 of the learned Single Judge of the High  Court of Bombay whereby, reversing concurrent findings and orders  of the three forums under the Act, the case has been remanded to  the original authority, i.e. Additional Tehsildar A.L.T., Karvir, District  Kolhapur for deciding afresh the proceedings initiated under Section  32G of the Act.

       The provisions of the Act came up for consideration of this  Court in the case of Patel Chunibhai Dajibhai etc. vs. Narayanrao  Khanderao Jambekar & Anr. [ (1965) 2 SCR 328 ], Amrit Bhikaji  Kale & Ors. vs. Kashinath Janardhan Trade & Anr. [(1983) 3 SCC  437] and Balchandra Anantrao Rakvi & Ors. vs. Ramchandra  Tukaram (D) by LRs & Anr. [ (2001) 8 SCC 616 ].  In the case of  Balchandra Anantrao Rakvi & Ors. (supra), the scheme of the Act  was examined and it was stated :-

’the scheme of the Act gives effect to the policy  "land for the tiller" by clothing all the tenants with  the right of ownership of the lands cultivated by  them personally.  A twofold strategy is adopted in  the Act \026 first, by making every tenant a ’deemed  purchaser’ of the land personally cultivated by him  under Section 32 of the Act and secondly, by  conferring on the tenant, in specified cases, the  right to purchase the land from the landlord, under  Section 32 of the Act, held by him under personal  cultivation’.

       The case of the landlord before the authorities was that on  "Tillers’ Day" i.e. on 1st April 1957, he was minor and, therefore, in  his case the "Tillers’ Day" gets postponed till the expiry of period of  one year from the date he attained majority.  Before the authorities  under the Act, he had proved his date of birth from School Leaving  Certificate to be 18.2.1954 and, therefore, he became major on  18.2.1972.  The landlord’s case is that during his minority the original  respondent-tenant (now deceased and represented by his Legal  Representatives) had defaulted in payment of agreed rent  consecutively for more than three agricultural years.  His tenancy,  therefore, was terminated in accordance with the provisions of  Section 31 read with Section 14 of the Act by notice dated  17.1.1961.  After termination of the tenancy, the landlord, through  his natural guardian mother, instituted proceedings under Section

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29(2) of the Act in the Court of Tenancy Aval Karkun, Taluka Karvir,  (registered as Tenancy Case No. 15 of 1969) and obtained an order  dated 31.12.1969 in his favour directing the tenant to handover  possession of the agricultural lands involved being Revenue Survey  Nos. 60 & 61 (now Block No. 131) in Village Arale.  It is submitted  that in the order passed in proceedings for obtaining possession of  the land, it was held that as the lands were given for sugarcane  cultivation, in accordance with provisions of Section 43A, the  provisions contained in Section 32 of the Act conferring status of  ’deemed purchaser’ on the tenant on the "Tillers’ Day" were not  applicable.

       The order dated 31.12.1969 of the Tenancy Aval Karkun,  Taluka Karvir, allowing application of the landlord for grant of  possession on the basis of termination of tenancy were challenged  by the tenant in appeal which was allowed.  The landlord then  preferred a revision petition before the Maharashtra Revenue  Tribunal which was allowed by order dated 13.8.1973.  The Tribunal  held in favour of the landlord that the lands involved having been  given for sugarcane cultivation, the provisions of Section 32  conferring status of ’deemed purchaser’ were not attracted. It was  also held that as the landlord was a minor and during minority  through his guardian had terminated the tenancy and obtained  possession of the lands, the tenant did not become ’deemed  purchaser’ under Section 32 of the Act.

       On behalf of the landlord reliance is also placed on the order  passed in his favour on 13.11.1972 by Tenancy Aval Karkun, Taluka  Karvir, whereby on his application under Section 88C of the Act,  exemption certificate was granted to the landlord on a finding that  the lands comprised in survey numbers constitute ’an economic  holding’ as defined in Section 2(6A) of the Act of which the total  annual income to the landlord, including the rent from such land,  does not exceed Rs. 1500/-.  It is submitted that the lands, which are  ’economic holdings’ having ’total annual income not exceeding Rs.  1500/-’, on grant of a certificate to that effect, are exempt from  application of provisions of Section 32 to 32R of the Act and on such  holdings a cultivating tenant can claim no status of ’deemed  purchaser’ on the "Tillers’ Day".  Against the order dated 13.11.1972  granting certificate of exemption under Section 88C of the Act, the  tenant went in appeal to the Court of Special Land Acquisition  Officer, Tulshi Project (I) Kolhapur and the said appeal was  dismissed in default by order passed on 14.4.1976.

       Despite the above-mentioned orders directing grant of  possession of the lands on termination of tenancy of the tenant, to  the landlord, declaration of exemption under section 43A of the Act  for the lands being on lease for sugarcane cultivation and grant of  exemption certificate to the lands being economic holdings having  less than prescribed annual income, Additional Tehsildar cum A.L.T.  Karvir, initiated suo motu proceedings under Section 32G of the Act  to enable the tenant to exercise right of purchase of the land in  accordance with provisions of Section 32 read with Section 32F of  the Act.  The landlord produced all the previous orders mentioned  above in his favour showing non-applicability of the provisions in   Section  32  and  32F  of  the  Act, termination of tenancy and  obtaining of the possession of the land.  On the above facts having  been pointed out, the Additional Tehsildar cum A.L.T. Karvir  recorded the fact that the lands having already been taken  possession of on 26.5.1971 by the landlord after due termination of  the tenancy and the proceedings having been become final, there  was no justification to proceed under Section 32G of the Act.  The  Additional Tehsildar, therefore, dropped the proceedings by order  dated 4.6.1978.  Against the said order, appeal No. 39 of 1979  preferred by the tenant to the Special Land Acquisition Officer (I),

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Kolhapur was rejected on 23.10.1981. The tenant thereafter  approached by way of a revision petition to Maharashtra Revenue  Tribunal, Kolhapur which also by its order dated 23.10.1983  dismissed the revision of the tenant and upheld the claim of the  landlord by recording in his order the following conclusions :-

"After hearing both the sides and going through the  record, it is an admitted fact that the tenant’s actual  possession is taken by the landlord under default  proceeding.  The contentions now raised is that on  1.4.1957 tenant has become deemed purchaser  ought to have been taken in previous proceedings  and if negatived rightly or wrongly as no further  action is taken in that proceedings, it is binding on  both the sides.  If it was not taken in present inquiry  it cannot be raised as there is record to show that  default proceeding.  There is also a difficulty in the  way of the tenant, as could be seen, that the lands  appear to have been leased for the purpose of  sugarcane crop, page 71 M.R.T. order in No. KP \026  394/1972 decided on 13.8.1973 in default  proceeding.  So it has become final.  So there is no  merit in present revision.  Hence following order is  passed :

ORDER

Revision application is dismissed."

       The tenant challenged the order of the Maharashtra Revenue  Tribunal and all other orders of the lower authorities confirmed by it  in Writ Petition No. 465 of 1984 in the High Court of Bombay. The  High Court relied on the decisions of this Court in the case of Patel  Chunibhai Dajibhai etc. vs. Narayanrao Khanderao Jambekar &  Anr. [(1965) 2 SCR 328], Amrit Bhikaji Kale & Ors. vs. Kashinath  Janardhan Trade & Anr. [(1983) 3 SCC 437].  By the impugned  judgment it held that on the "Tillers’ Day" i.e. on 1.4.1957, by  operation of law in Section 32 of the Act the relationship of landlord  and tenant between the parties ceased even though the landlord  was a minor and after the "Tillers’ Day" his tenancy was terminated.   According to the High Court, all the proceedings of termination of  tenancy have to be ignored as invalid in law.  The High Court also  observed at one place in its judgment that not all the lands involved  were found to have been leased for sugarcane cultivation.  The High  Court, therefore, set aside all the orders passed by the Authorities  under the Act and remanded the case to the original authority i.e.  Additional Tehsildar cum A.L.T. Karvir to take up fresh proceedings  under Section 32G of the Act.

       Learned counsel Shri U.U. Lalit appearing for the landlord  made strenuous effort by taking us through the scheme of the Act  and various provisions of the Act to contend that where the landlord  is a minor the statutory effect of deemed purchase on "Tillers’ Day"  under Section 32 gets postponed by virtue of the provisions  contained in Section 31 and other provisions in the said Chapter III,  till expiry of period of one year from the date of attainment of majority  by the landlord. In the alternative, the learned counsel for the  landlord submitted that the order passed granting delivery of  possession to the landlord under Section 29, on termination of  tenancy, declaration under Section 43A that the lands were leased  for sugarcane cultivation and the exemption certificate granted under  Section 88C for the lands as ’economic holdings’ having prescribed  limited annual income, had all attained finality. The High Court,  therefore, was not justified in annulling all those orders of original,  appellate and revisional authorities and setting aside the orders

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dropping proceedings under Section 32G of the Act.  It is submitted  that the tenant had lost his right to purchase land by paying price to  the landlord and, in fact, no such right was ever claimed by the  tenant in initial proceedings instituted by the landlord under the Act.

       The original tenant died during pendency of appeal in this  Court and his Legal Representatives have been duly substituted on  record.  They have been served with notices of the appeal but no  one appears to represent them.  Since legal questions were involved  and the impugned order of the High Court was in favour of the  tenant, on our request, learned Senior Advocate Shri Ashok Desai  appeared as amicus curiae to assist the Court. We thankfully  acknowledge his assistance.  The learned amicus curiae submitted  that the provisions contained in Chapter III of the Act do not provide  or contemplate postponement of "Tillers’ Day" even in case of a  minor landlord.  According to him what is postponed is merely the  formality of obtaining ownership by the tenant on payment of  purchase price in accordance with provisions contained in Section  32(3) and 32F of the Act.

       After hearing the learned counsel for the parties, we have  looked into the record of this case and also examined the relevant  provisions contained in Chapter III of the Act.  We have also gone  through the decisions cited at the Bar.  We have come to the  conclusion that the main legal contention advanced as to the  postponement or otherwise of the "Tillers’ Day" under Section 32 in  case of a minor landlord is not required to be decided by us. The  three decisions of this Court cited before us do not directly cover the  point because those were not the cases on statutory effect of  Section 32 on "Tillers’ Day" in a case where the landlord is a minor.

       In our considered opinion, the landlord deserves to succeed in  this appeal on the alternative grounds. There is clear concurrent  finding of the Authorities under the Act that the lands involved were  given for sugarcane cultivation and to leases of such lands, by virtue  of provisions contained in Section 43A, the provisions mentioned in  the said section including in Section 32 are not applicable.  The  relevant provision reads:

"43A.    Some of the provisions not to apply to  leases of land obtained by industrial or  commercial undertakings, certain co-operative  societies or for cultivation of sugarcane or fruits  or flowers. \026 (1) The provision of sections 4B, 8, 9,  9A, 9B, 9C, 10, 10A, 14, 16, 17A, 17B, 18, 27, 31 to  31D (both inclusive), 32 to 32R (both inclusive), 33A,  33B, 33C, 43, 63, 63A, 64 and 65 shall not apply to \026

(a)     land leased to or held by any industrial or  commercial undertaking (other than a Co- operative Society) which in the opinion of  the State Government bona fide carried on  any industrial or commercial operations and  which is approved by the State  Government;

(b)     leases of land granted to any bodies or  persons other than those mentioned in  clause (a) for the cultivation of sugarcane  or the growing of fruits or flowers or for the  breeding of livestock;

(c)     to lands held or leased by such co- operative societies as are approved, in the  prescribed manner, by the State

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Government which have for their objects  the improvement of the economic and  social conditions of peasants or ensuring  the full and efficient use of land for  agriculture and allied pursuits."

[Underlining to add emphasis]

We have also mentioned above that the landlord had instituted  proceedings under Section 88C of the Act seeking certificate of  exemption of the lands from operation of the provisions contained in  Section 32 to 32R of the Act as the lands were ’economic holdings’  within the definition of the Act having annual income not exceeding  Rs. 1500/-.  On the said application under Section 88C of the Act, a  certificate was issued in favour of the landlord.  The proceedings  declaring the lands to have been granted for sugarcane cultivation  under Section 43A and the certificate granted under Section 88C of  the Act clearly took out the lands in question from the purview of  provisions of Section 32 to 32R of the Act.  The above orders in  favour of the landlord under Section 43A and 88C were taken up by  the tenant to the Maharashtra Revenue Tribunal and they have  attained finality in favour of the landlord.  Those orders were not  separately challenged by the tenant in further proceedings before  the High Court.  Since the above orders under Section 43A and  Section 88C have become final and conclusive between the parties,  the authorities under the Act rightly held that proceedings under  Section 32G, to enable the tenant to purchase the land as ’deemed  purchaser’ under Section 32, were liable to be dropped.  It has also  come on record that during his minority the landlord, through his  natural guardian, terminated the tenancy of the tenant on the ground  of continuous defaults in payment of rent.  He thereafter instituted  proceedings under Section 29(2) of the Act and obtained possession  of the lands.  When the tenant tried to interfere with the possession  of the landlord, a civil suit was filed in the Court of Second Civil  Judge (Jr. Division), Kolhapur being Civil Suit No. 464 of 1971 and a  decree of permanent injunction was obtained against the tenant by  judgment dated 30th April 1974.  A second suit being Civil Suit No.  1005 of 1977 was again filed by the landlord against the tenant and  others for grant of a perpetual injunction against them not to cause  interference and obstruction in the possession of the landlord over  the lands.  The second suit was decreed on 21.7.1986.  These  decrees of the Civil Court have also attained finality.

       In the aforesaid circumstances, we do not consider it  necessary to go into the purely academic question as to whether in  case of a minor landlord, "Tillers’ Day" under Section 32 of the Act  gets postponed or not and whether such a minor landlord during his  minority, after "Tillers’ Day" can terminate the tenancy for default in  payment of rent or not.

       In our considered opinion, the High Court was clearly in error  in observing that not all the lands have been found to have been  leased for sugarcane cultivation. It also committed a serious error in  overlooking the fact that all proceedings undertaken by the landlord  for terminating tenancy, obtaining possession under Section 29,  declaration under section 43A and exemption certificate under  Section 88C of the Act had attained finality.  The High Court,  therefore, grossly erred in quashing all orders of the authorities  under the Act and remanding the matter to the original authority for  proceeding afresh under Section 32G of the Act.

       As a result of the discussion aforesaid, the appeal is allowed.  The impugned order of the High Court dated 17th November 1997 is  hereby set aside and  the orders of the authorities below under the Act are restored.  The

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respondents are unrepresented and, therefore, we leave the parties  to bear their own costs.