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Bombay High CourtIndian Cases

Smt. Kallawwa Shattu Patil And Ors. vs Yallappa Parashram Patil And Ors. on 15 November 1991

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Bombay High Court
Smt. Kallawwa Shattu Patil And Ors. vs Yallappa Parashram Patil And Ors. on 15 November, 1991
Equivalent citations: 1992(2)BOMCR178, (1991)93BOMLR973
JUDGMENT

D.R. Dhanuka, J.

1. By this petition filed under Article 227 of the Constitution of India, the petitioners have impugned the judgment and order dated 10th February 1981 passed by the Maharashtra Revenue Tribunal, Kolhapur, in Revision Application No. MRK-KP-1 of 1980 dated 2nd November, 1980 against the order dated 10th October, 1979 passed by the Sub-Divisional Officer, Gandhinglaj, in Tenancy Appeal No. 6 of 1979. The dispute concerns the proceedings for fixation of purchase price in respect of agricultural lands in question in proceedings adopted at the instance of the tenant-purchaser for the said purpose under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (“the Tenancy Act”, for short) (petition lands being lands situate at Village Kagani, R.S. No. 182/4, area 1 acre and 18 gunthas, assessment O-47-(0-8-0 share). The said land was Patilki inam land, i.e., watan land, till the date of its re-grant to the petitioners and respondent No. 2 sometime in the year 1972. The principal question arising for the consideration of the Court is as to whether the section 32-O of the Tenancy Act is applicable to a case like the present one. Section 32-O of the Tenancy Act is applicable only to cases where tenancy is created by the landlord after the tillers’ day, as more particularly set out therein, and not to the cases where the tenancy of agricultural land was subsisting on 1st April 1957 i.e., the tillers’ day. The connected question arising for consideration of the Court is as to whether a fresh lease is deemed to have been created by the landlords in favour of the old tenant from the date of ‘re-grant’ within the meaning of section 32-O of the Tenancy Act so as to oblige the tenant to send intimation of statutory purchase to the landlords and the Tribunal within on year from the date of the re-grant. This petition also raises the question of interpretation of section 8 of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 (“the Patels Abolition Act”, for short).

2. In the above-referred proceedings under section 32-G of the Tenancy Act, the following orders were passed by the learned authorities below :—

(a) By his order dated 16th October 1978, the Additional Tahsildar and Agricultural Lands Tribunal, Chandgad, held that the statutory purchase of the land bearing R.S. No. 182/4 was ineffective, as the 1st respondent, tenant had failed to serve notice on the landlords (the petitioners and respondent No. 2) exercising his right to purchase the said land as required by section 32-O of the Tenancy Act. The said order was passed in Tenancy Case No. 9/104.
(b) By his order dated 10th October 1979, the Sub-Divisional Officer allowed the appeal of the 1st respondent-tenant and directed the Additional Tahsildar and Agricultural Lands Tribunal to fix the purchase price in favour of the petitioners. It was also observed in the said order that the petitioners had no knowledge of re-grant of the land bearing R.S. No. 182/4 in favour of the landlords i.e., the petitioners and respondent No. 2 at the material time.
(c) By his order dated 10th February 1981, the Maharashtra Revenue Tribunal dismissed Revision Application No. MRT-KP-1/80. By the impugned order dated 10th February 1981, the Tribunal held that section 32-O of the Tenancy Act was not applicable to a lease subsisting on the tiller’s day. The Tribunal held that sections 32-O of the Tenancy Act was applicable only where lease was created by the landlord after 1st April 1957. The Tribunal held that section 8 of the Patels Abolition Act clearly provided that lease of watan land continued throughout and was governed by the Tenancy legislation subject to postponement of compulsory purchase to date of re-grant and no fresh lease was created or deemed to have been created in favour of the tenant concerned after 1st April 1957.
3. The material facts emerging from the record are as under :—

(a) At all material times, the respondent No. 1 was the tenant of the petitioners and respondent No. 2 in respect of the land bearing R.S. No. 182/4 admeasuring 1 acre and 16 gunthas situate in Village Kagani, Taluka Chandgad, District Kolhapur (0-8-0 share), as more particularly described in paragraph 2 of the petition.
(b) Prior to its re-grant in the year 1972, the land bearing R.S. No. 182/4 was watan land, i.e., patikli inam land. The said land was lawfully leased by the landlords ( the petitioners and respondent No. 2) to the 1st respondent-tenant very much prior to 1st April 1957. The said lease was subsisting on the tillers’ day and throughout. The 1st respondent was lawfully cultivating the said that throughout and including on the tillers’ day. The provisions regarding fixation of compulsory purchase of the said land made in the proceeding under section 32-G of the Tenancy Act could not be availed of by the 1st respondent until the date of re-grant of the said land in favour of the landlords and the relevant date for implementation of the statutory purchase was thus postponed to the date of re-grant.
(c) Sometime in the year 1972, the land bearing R.S. No. 182/4 was re-grant by the authorities in favour of the petitions and respondent No. 2. The 1st respondent-tenant was not made aware of such re-grant of the land by the petitioners and respondent No. 2 or by the authorities concerned.
(d) Sometime in the year 1977, an inquiry for fixation of purchase price was once again held by the Agricultural Lands Tribunal, under section 32-G of the Tenancy Act on 16th October 1978. The Additional Tahsildar and Agricultural Lands Tribunal, Chandgad, passed an order to the effect that the said inquiry was liable to be declared ineffective on the ground that the 1st respondent tenant had no severed any notice on the landlords, i.e., the petitioners and respondent No. 2, declaring his intention to purchase the said land within the period prescribed by section 32-O of the Tenancy Act.
(e) Being aggrieved by the said order dated 16th October, 1978, the 1st respondent preferred an appeal before the Sub-Divisional Officer as contemplated under section 74 of the Tenancy Act. The appellate authority recorded a positive, firm and clear finding to the effect that respondent No. 1 had no knowledge of the said re-grant. The appellate authority held that respondent No. 1 was entitled to avail of the benefit of the provisions contained in the Tenancy Act and completion of statutory purchase of the petition land, i.e., the land bearing R.S. No. 182/4. By the said order dated 10th October, 1979, the Sub-Divisional Officer allowed the appeal and remanded the matter to the Additional Tahsildar and Agricultural Lands Tribunal, Chandgad, with a direction to fix the purchase price in respect of the petition land in favour of respondent No. 1.
(f) Being aggrieved by the order dated 10th October, 1979 passed by the Sub-Divisional Officer, the landlords, i.e., the petitioners and respondent No. 2, preferred a revision application before the Maharashtra Revenue Tribunal, Kolhapur. The said revision application was dismissed by an order dated 10th February 1981.
4. In the said order dated 10th February 1981, the Maharashtra Revenue Tribunal referred to the provisions of section 32-O of the Tenancy Act as well as section 8 of the Patels Abolition Act. Section 32-O of the Tenancy Act reads as under :—

32-O. (1) In respect of any tenancy created after the tillers’ day by a landlord (not being a serving member of the armed forces notwithstanding any agreement or usage to the contrary, a tenancy cultivating personally shall be entitled within one year from the commencement of such tenancy to purchase from the landlord the land held by him or such part thereof as will raise the holding of the tenant to the ceiling area.

(1-A) A tenant desirous of exercising the right conferred on him under sub-section (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-N (both inclusive) and of sections 32-P, 32-Q and 32-R in so far as they may be applicable shall apply to the purchase of the land by a tenant under sub-section (1).”

Section 8 of the Patels Abolition Act reads as under :—

“8. If any watan land has been lawfully leased and such lease is subsisting on the appointed day, the provisions of the relevant tenancy law shall apply to the said lease, and the rights and liabilities of the holder of such land and his tenant or tenants shall, subject to the provisions of this Part, be governed by the provisions of that law :
Provided that, for the purposes of application of the relevant tenancy law in regard to the compulsory purchase of land by a tenant, the lease shall be deemed to have commenced from the date of the regrant of the land under section 5 or 6 or 9, as the case may be.
Explanation.—For the purposes of this section, the expression ‘land’ shall have the same meaning as is assigned to it in the relevant tenancy law.”
The Maharashtra Revenue Tribunal held that section 32-O of the Tenancy Act was not applicable to this case as no tenancy was created by the landlords in favour of the tenant after tillers’ day and the tenancy was subsisting since prior to tillers’ day. The Tribunal held that the land bearing R.S. No. 182/4 was already leased in favour of the 1st respondent-tenant and the said lease was subsisting on tillers’ day. The Tribunal held that the date of compulsory purchase of the said land was merely postponed by statute upto the date of re-grant and once the land was re-granted in favour of the landlords, the ministerial act of fixation of purchase price in favour of the tenant must follow. The Tribunal held that section 32-O of the Tenancy Act was not applicable to the cases where the lease was subsisting on 1st April, 1957 and the petitioners were not required to send statutory notice to the landlords before invoking the provisions relating to fixation of purchase price. In my judgment, the Tribunal has correctly interpreted section 32-O of the Tenancy Act and section 8 of the Patels Abolition Act. I am in complete agreement with the view taken by the Tribunal in its impugned order.

5. The suo motu proceedings initiated by the concerned revenue authorities under section 32-G of the Tenancy Act were dropped by an order passed on 29th May, 1962 in view of the fact that the land bearing R.S. No. 182/4 was then found to be watan land after expressing the view that no purchase price in respect thereof could be fixed till the date of re-grant of the said land in favour of the landlords, i.e., the petitioners and respondent No. 2.

6. The learned Counsel for the petitioners has contended that the impugned order suffers from an error of law apparent on the face of the record on two grounds. The learned Counsel submits that section 32-O of the Tenancy Act is applicable to this case and the 1st respondent-tenant was under an obligation to give an intimation to the landlords, i.e., the petitioners and respondent No. 2, and the Tribunal in the prescribed manner within one year from the commencement of “such tenancy”. The learned Counsel submits that this is a case of creation or deemed creation of fresh tenancy by the landlords since the date of re-grant and the provisions contained in section 32-O of the Tenancy Act are therefore attracted to this case. The learned Counsel further submits that in view of the notice of purchase having not been served by the 1st respondent-tenant on the landlords and the Tribunal within a periods of one year from the date of re-grant is absolute and is not dependent on the question as to whether the respondent No. 1 had knowledge about the said re-grant or not. The learned Counsel has further submitted that the petitioners and respondent No. 2 are under no obligation to send intimation of re-grant to the tenant on the land being re-granted by the authorities in favour of the petitioners and respondent No. 2 and it is for the tenant to keep a watch over the situation.

7. The watan land was lawfully leased by the landlords, i.e., the petitioners and respondent No. 2, in favour of the 1st respondent-tenant much prior to 1st April 1957 and the said lease was subsisting on the appointed day. The 1st respondent was lawfully cultivating the land bearing R.S. No. 182/4 throughout. Practically all the provisions of the Tenancy Act became applicable to the lease forthwith. Merely the date of compulsory purchase and fixation of purchase price were postponed by statute, i.e., by operation of law upto the date of regrant. In other words, the provisions for implementation of compulsory purchase of the land contained in section 32-G of the Tenancy Act could not be availed of by the respondent No. 1 until the date of regrant of the said land. In my judgment, the landlords did not create any fresh tenancy in favour of respondent No. 1 after 1st April 1957 and section 32-O of the Tenancy Act can have no application to such a case. Section 32-O of the Tenancy cannot apply to a case where the land was already leased by the landlords in favour of the tenant prior to 1st April 1957 and the said lease was subsisting on 1st April 1957 and it has subsisted throughout. The proviso to section 8 of the Patels Abolition Act created a statutory legal fiction for an extremely limited purpose, i.e., for the purpose of fixing of purchase price in respect of statutory purchase. For the said limited purpose, the land is deemed to have been leased from the date of re-grant. It does not follow there from than the landlords have created a lease in respect of the said land after 1st April 1957 form the re-grant. The old lease never came to and end. New contract of lease was never arrived at. Deemed date of commencement of pre-existing lease for the limited purpose set out in the proviso to section 8 of the Patels Abolition Act does not and cannot bring the case within the ambit of section 32-O of the Tenancy Act. The condition precedent prescribed by section 32-O of the Tenancy Act for its applicability is not satisfied in this case. In my judgment, the Tribunal has rightly held that section 32-O of the Tenancy Act is not applicable to this case and the 1st respondent-tenant is straightaway entitled to invoke the provisions of section 32-G of the Tenancy Act and move the authorities for fixation of purchase price without serving any notice on the landlords in respect of exercise of his right to purchase the said land. The 1st respondent has repeatedly expressed his intention to make the statutory purchase.

8. The learned Counsel for the petitioners has invited my attention to the judgment of Vaidya, J., in the case of Bhila Keshav Patil v. Ganapati Chunilal Kabre, 75 Bom.L.R. 98. The said judgment is clearly distinguishable and has no application to the situation presented by this case. In the instant case, the fiction enacted by the proviso to section 8 of the Patels Abolition Act must be given effect to. The proviso to section 8 of the Patels Abolition Act is liable to be interpreted in the light of the main provision of section 8 of Patels Abolition Act. The said main provision clearly provides that if the watan land was lawfully leased prior to the appointed day, the provisions of the relevant tenancy law shall be applicable to such lease throughout and all the rights and obligations of the holder of such land and his tenant shall be governed by the tenancy law subject to the other provision of the Patels Abolition Act. In this case, respondent No. 1 was the tenant of the said land on the appointed day and his rights and obligations were and are governed by the relevant Tenancy Act. Merely the date of compulsory purchase of the said land was postponed. The date of compulsory purchase of the land was statutorily postponed to the date of re-grant as already discussed above. It is impossible to hold that section 32-O of the Tenancy Act it applicable in such a situation. Where the lease has been subsisting throughout since prior to 1st April 1957 and has not been created by the landlords for the first time by a transaction inter vivos after 1st April 1957, section 32-O of the Tenancy Act has no application.

9. It cannot be forgotten that this petition is filed under Article 227 of the Constitution of India. This Court is not bound to interfere with the impugned order even if the order suffers from some error when the impugned order appears to the Court to be substantially just and reasonable. In my judgment, the impugned orders are just and reasonable. On this ground also, I hold that no case is made out for judicial intervention under Article 227 of the Constitution of India. The factum of tenancy of the respondent No. 1 tenant in respect of the land bearing R.S. No. 182/4 is not disputed. There is no justification to deprive the respondent No. 1 of his right to make the statutory purchase on par with others on the alleged technical or hyper-technical ground. It is not a case for interference by the Writ Court. Substantial justice is in favour of the respondent No. 1 and not the petitioners.

10. In the result, the petition fails. Rule is discharged. No order as to costs.

11. The Tahasildar and Agricultural Lands Tribunal shall fix the purchase price expeditiously and not later than three months from the date of receipt of copy of this Order or the writ. Issue of certified copy and ordinary copy is expedited.