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PETITIONER: SEVALIRAM GOTIRAM TELI (DECEASED)BY HEIRS AND LRS

       Vs.

RESPONDENT: MADHUKAR YESHWANT PATANKAR & ORS.

DATE OF JUDGMENT:       19/11/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.B. Majmudar, J.      In  this   appeal  the  question  that  falls  for  our consideration is as to whether heirs of a tenant governed by the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter  referred  to  as  ‘the  Act’)  can  claim restoration of possession of the land under the provision of Section  32(1B)  of  the  Act  when  such  proceedings  were initiated  suo   motu  by   the  Mamlatdar   concerned.  The Additional  Mamlatdar,   the  Deputy   Collector   and   the Maharashtra Revenue  Tribunal held  in favor of the heirs of the tenant  and ordered  restoration of  possession  of  the lands from  the  respondent-landlords.  The  High  Court  of Bombay by the judgment under appeal took a contrary view and held that  such proceedings  are maintainable  only for  the tenant concerned  and not  for his heirs. It is this view of the Bombay  High Court  which brought  in challenge  in  the present proceedings by the heirs of the erstwhile tenant.      A few  relevant facts  may be  noted at the outset. One Savaliram Gotiram  Teli was the tenant of three agricultural lands being  Survey Nos.  88, 89  and 90 situated at Village Trimbak in  Nasik Taluka  in Maharashtra  State. Respondents were the  landlords of the said lands. On the appointed day, that is, 15th June 1955 the said tenant was in occupation of these lands.  He was  dispossessed by the landlords prior to 1st April  1957 otherwise  than under  an appropriate  order under Section  29 of the Act. After dispossessing the tenant the respondent-landlords  remained in possession of the said lands  till   31st  July   1969.  The  Additional  Mamlatdar instituted suo motu proceedings under Section 32 (1B) of the Act of  the ground  that the tenant was in possession of the lands on  the appointed day and he was dispossessed prior to the tillers  day, that  is, 1st  April 1957 by the landlords without following  due procedure  of law  and the  lands  in question were  in  possession  of  the  landlords  of  their successors-in-interest on 31st July 1969 and, therefore, the respondents were  liable to  restore the  possession of  the lands to  the heirs  of the tenant even though the tenant in the  meantime  had  died  in  1959.  As  all  the  requisite condition for  applicability of  Section 32(1B)  of the  Act

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were found  to have  been satisfied  the Special  Additional Tahsildar,  Nasik  by  his  order  dated  20th  August  1971 directed the  respondent-landlords to  restore the  lands to the heirs of the tenant under Section 32 (1B) of the Act for personal cultivation.  The said  order was challenged by the landlords  by   filing  Tenancy  Appeal  which  came  to  be dismissed by  Leave Reserve  Deputy Collector, Nasik on 10th January 1972.  Respondent-landlords carried  the  matter  in revision  before  the  Maharashtra  Revenue  Tribunal  under Section <??>70  of the  Act. That  Revision Application  was also dismissed.  It is  thereafter,  that  the  respondents, aggrieved by  the order  of the  Revenue Tribunal  dated 2nd March 1973,  carried the  matter in appeal under Article 227 of the  Constitution of  India to  the High Court of Bombay. The only  question argued  before  the  High  Court  by  the respondents was  as to whether the proceedings under Section 32 (1B)  of the  Act for  the benefit  of the  heirs of  the original tenant  could be  maintained.  The  learned  Single Judge of  the High  Court by  his order dated 1st March 1978 persuaded himself  to hold  that such  proceedings were  not maintainable for  the heirs of the erstwhile tenant and only the tenant  could have  initiated such  proceeding and as he had died  in 1959 and as during his lifetime he had taken no steps to  get restoration  of possession of the lands within two years  from the  date of dispossession as per Section 29 of the Act his tenancy rights had got extinguished and could not be inherited by the appellant-heirs and consequently the proceedings under  Section 32 (1B) of the Act were liable to the quashed on that ground. It is the aforesaid order of the learned Single  Judge of  the High Court which is brought in challenge in the present proceedings as noted earlier.      At the  time when  this appeal was finally heard before us it  was brought  to out notice by learned counsel for the appellants that the aforesaid decision of the learned Single Judge which  was reported  in AIR  1979 Bombay  117 has been overruled by a Division Bench of the High Court of Bombay in the case  of Pandharinath  Sakharam Chavan  v. Bhagwan  Ramu Kate & Ors. AIR 1<??> Bombay 203 and it has been held by the Division Bench of the High Court that such proceedings under Section 32  (1B) of  the Act  were maintainable  even at the instance of the heirs of the original deceased tenant if the statutory conditions  for applicability  of the Section were complied with. Learned counsel  for  the  respondents  on  the  other  hand submitted that  though the  Division Bench of the High Court has overruled  this judgment so far as these proceedings are concerned this  Court may  uphold the  view of  the  learned Single Judge  as the same is well sustained on the scheme of the Act.      Having given  our anxious  consideration to  the  rival contentions we  find that on the express language of Section 32 (1B)  of the  Act the  view taken  by the  learned Single Judge of  the High  Court in the impugned Judgment cannot be sustained. Section 32 (1B) of the Act reads as under:      "32 (1B). Where a tenant who was in      possession on the appointed day and      who  on   account  of   his   being      dispossessed before  the 1st day of      April 1957  otherwise than  in  the      manner  and  by  an  order  of  the      Tahsildar as  provided  in  section      29, is  not in  possession  of  the      land on  the said date and the land      is  in   the  possession   of   the      landlord   or   his   successor-in-

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    interest on  the 31st  day of  July      1969 and  the land  is not put to a      non-agriculture use  on  or  before      the last  mentioned date, then, the      Tahsildar  shall,   notwithstanding      anything  contained   in  the  said      section 29,  either suo  motu or on      the application of the tenant, hold      an inquiry  and  direct  that  such      land  shall   be  taken   from  the      possession of  the landlord  or, as      the case  may be, his successor-in-      interest, and  shall be restored to      the  tenant;  and  thereafter,  the      provisions  of   this  section  and      sections   32-A    t   32-R   (both      inclusive) shall, in so far as they      may be  applicable, apply  thereto,      subject to  the  modification  that      the tenant  shall be deemed to have      purchased the  land on  the date on      which the land is restored to him:      Provided that,  the tenant shall be      entitled to restoration of the land      under this  sub-section only  if he      undertakes to  cultivate  the  land      personally and  of so  much thereof      as together  with  the  other  land      held by  him  as  owner  or  tenant      shall not exceed the ceiling area.      Explanation.- In  this  sub-section      "successor-in-interest"   means   a      person who acquires the interest by      testamentary     disposition     or      devolution on death."      A mere  look at  the  said  provision  shows  that  for applicability of the said provision the following conditions must be satisfied: (1)  The tenant governed by the Act must be in possession on      the appointed day, that is, 15th June 1955. (2)  He should  have been  dispossessed before  the  tillers      day, that  is, 1st  April 1957  otherwise than  in  the      manner and  by an order of the Tahsildar as provided in      Section 29. (3)  The said  land must be in possession of the landlord or      his successor-in-interest on 31st day of July 1969. (4)  The land  should not  have been put to non-agricultural      use by  the landlord  on or before the 31st day of July      1969.      Once the  aforesaid four  conditions  are  satisfied  a statutory duty  is cast  on  the  Tahsildar  notwithstanding anything contained  in Section  29 either  suo  motu  or  on application of the tenant to hold an inquiry and direct that such land shall be taken from the possession of the landlord or his  successor-in-interest and  shall be  restored to the tenant. Once  that happens the provisions of Section 32-A to 32-R of  the Act will get attracted and the concerned tenant would be declared deemed purchaser of the land on the day on which the  land is  restored to him. However the restoration order will  be subject  to the  undertaking of the tenant to cultivate the  land personally.  There is  no dispute in the present case that all the aforesaid conditions are satisfied by the  appellants. The  High Court  also has  not  taken  a contrary view  on the  applicability  of  these  conditions, namely, that  the original tenant Savaliram Gotiram Teli was

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in possession  of the lands of 15th June 1955, the appointed day. That  he was  dispossessed before 1st April 1957 by the respondent-landlords  without  following  the  procedure  of Section 29. That thereafter the lands remained in possession of the  respondents upto 31st July 1969 and they did not put the lands  to non-agricultural  use. Once  these  conditions were satisfied  in suo  motu proceedings  taken out  by  the Tahsildar it  was the  statutory obligation of the Tahsildar to restore  the lands  to the  tenant. Unfortunately  by the time these  proceedings could  be initiated  and Section  32 (1B) could  operate the  tenant had died in 1959. It is only on this  ground that  the High  Court took the view that the tenant’s heirs  cannot get the benefit of Section 32 (1B) of the Act.  The learned  Single Judge in order to come to this conclusion placed  reliance on  two circumstances,  (i)  the tenant in  his lifetime  after dispossession  had not  taken steps to  get restoration  of possession under Section 29 of the Act  within two  years of  dispossession; and  (ii)  the Section nowhere  expressly contemplated  that the land could be restored  to successor-in-interest of the tenant when the Section itself provided that the land could be in possession of landlord  or his  successor-in-interest  meaning  thereby proceedings could  be initiated  even against the successor- in-interest of the landlord but the Section nowhere provided a similar  right in  favour of  the successor-in-interest of the tenant.  In our view with respect both these grounds are unsustainable for  non-suiting the appellants. So far as the first ground  is concerned  it has  to be  kept in view that Section 32  (1B) of  the Act  itself operates on its own and includes within  it the  non obstante clause meaning thereby overriding the  provision of  Section 29  of the  Act.  This clearly means that whether the erstwhile tenant had followed the provisions  of Section 29 or not for getting restoration of possession of the land from the landlord within two years under  Section   29  was   irrelevant  as  a  further  locus penitential is given to such tenants by the express language of Section  32 (1B)  of the  Act and  the said Section would operate  independently   of  and   de   hors   section   29. Unfortunately the  effect in  this non  obstante  clause  is missed by  the learned Single Judge of the High Court in the impugned  judgment.  The  Division  Bench  in  the  case  of Pandharinath (supra)  has rightly  pointed out the said flaw in the judgment of the learned Single Judge. Once Section 32 (1B) operates  on its  own independently  of  provisions  of Section 29 of the Act the result becomes obvious, Section 40 of the  Act then  squarely gets  attracted. Section 40 reads thus:-      "S.40. (1)  Where a  tenant  (other      than a  permanent tenant) dies, the      landlord shall  be deemed  to  have      continued the  tenancy on  the same      terms and  conditions on which such      tenant was  holding it  at the time      of his death, to such heir or heirs      of the  deceased tenant  as maya be      willing to continue the tenancy.      (2) Where  the tenancy is inherited      by heirs  other than  the widow  of      the  deceased  tenant,  such  widow      shall have a charge for maintenance      on the profits of such land."      The said Section provides for a deemed fiction about transmission of  existing tenancy  rights in  favour of  the heirs. Thus,  by the  time the  tenant died  in 1959, as his tenancy rights  had not  got extinguished  by an appropriate

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proceedings  under   Section  29  at  the  instance  of  the landlord,  those   tenancy  rights  survived  and  could  be transmitted under  the statutory provisions of Section 40 in favour of  the  heirs  of  the  erstwhile  tenant  who  were obviously willing  to continue  as tenants. Consequently the appellants  themselves   got  clothed  with  the  rights  of statutory tenants by operation of Section 40 of the Act. The result was  that when  Section 32  (1B) operated  they fully satisfied the  requirement of being statutory tenants of the land in  question having  the same  terms and  conditions of tenancy qua  the respondent  landlords and hence could claim their right  of restoration  of possession  of the  tenanted lands against  the respondent-landlords  on satisfaction  of the required conditions of Section 32 (1B) of the Act.      The second  ground which appealed to the learned Single Judge is  also unsustainable  for  the  simple  reason  that Section 32  (1B) of  the  Act  was  required  to  include  a provision  regarding   restoration  of   possession  by  the successor-in-interest of  landlords for  the  simple  reason that the  landlord might  have died  in the meantime and his interest in  the land  might  have  been  inherited  by  his successor-in-interest by  way of  testamentary succession or intestate  succession   and  it   could  be   urged  by  the successors-in-interest that  they were not the landlords who had illegally  dispossessed the  tenant. In  order to  avoid such a  contingency  and  to  rope  in  such  successors-in- interest who  were claiming  through the  erstwhile landlord and who  were in  possession of  land only  because  of  the illegal dispossession of the tenant by their predecessor-in- interest, the  Explanation had  to be  enacted to  make  his successor-in-interest answerable  to the  claim of erstwhile tenant under  the said  Section. Such is not the requirement so far  as the  tenant’s heirs  are concerned  as the tenant being  the   aggrieved  party   can  himself   support   the proceedings for  restoration of  possession or if he dies in the meantime  and his  tenancy rights get transmitted to his heirs under  Section 40  of the  Act, his heirs in their own right would  become statutory  tenants and  can  invoke  the provisions of  the  Section  against  the  landlord  or  his successor-in-interest.  As   there  was  no  provision  like Section 40  for transmission  of  landlord’s  right  on  his death, Explanation  to Section  32 (1B)  was required  to be enacted for  making the  said provision  fully operative  in such contingencies.  The learned  Single Judge took the view that Section  40 was out of picture as the tenancy rights of the erstwhile tenant had got extinguished on account of non- compliance of  Section 29  of the  Act. Once  that reasoning gets displaced  by the  express provision  of  non  obstante clause in  the Section excluding the operation of Section 29 for the  applicability of  Section 32  (1B), Section 40 gets attracted. Hence the non-mentioning of successor-in-interest of the  tenant in  the Section  pales into insignificance as seen above.  In our  view with  respect the  learned  Single Judge was  patently In  error when  he held that application under Section  32 (1B)  moved by  the heirs of the erstwhile tenant could not be maintained even though all the statutory conditions for  applicability of the Section were satisfied. It has  to be  kept in view that the tillers day legislation is based  on the legislative in <??> that all the tillers of the soil, namely, the tenants would become deemed purchasers of the  lands on  1st April  19<??>. Only  in  circumstances where the erstwhile tenants got illegally dispossessed prior to 1st  April 1957,  a question would arise as to what is to be done  about them  and that  is the reason why Legislature gave a  locus penitential to such displaced tenants to apply

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for  restoration   of  possession   from  the  landlords  on satisfying the  conditions laid down in the Section and once those conditions  are satisfied  the estate  of  the  tenant would get  enlarged  into  full  ownership  so  far  as  the tenanted lands  are concerned. Thus it was a statutory right inhering  in  the  estate  of  the  erstwhile  tenant  which obviously could be pressed in service not only by the tenant himself but  by his heirs and legal representatives who also can claim  the statutory right to purchase these lands being a right inherited by them from the erstwhile tenant having a direct nexus  with the  proprietory rights  in the land. For all these reasons, therefore, the judgment under appeal must be held  to be  erroneous in  law and  the said judgment was rightly overruled by the Division Bench of the High Court in the case of Pandharinath (supra).      In the  result this appeal succeeds and is allowed. The judgment and  order of  the learned Single Judge of the High Court are quashed and set aside and instead the judgment and order  rendered  by  the  Maharashtra  Revenue  Tribunal  as confirming the  orders of  the Special  Additional Tahsildar dated 20th  August 1971  and that  of Leave  Reserve  Deputy Collector, Nasik  dated 10th  January 1972  are restored. In the facts  and circumstances of the case will be re order as to costs.