Writ Petition No.3687 of 1988

8th November, 1995

Petitioner Counsel: Shri. M.V. SALI
Respondent Counsel: Shri. M.A. RANE for RAMESH D. RANE

Cases Cited:
73 BLR (1971) 793 [Para 7]

JUDGMENT

JUDGMENT : This petition under Article 227 of Constitution of India arises in view of the proceedings under Ss. 32F and 32G of Bombay Tenancy and Agricultural Lands Act, 1948 (for short Bombay Tenancy Act) in the following facts:

2. One Hariba Vitthal Gosavi was landlady of the lands S.No.81/3 admeasuring (2 A 16 gs). S.No.80/2 admeasuring (1 A 5 gs) and S.No.113/1 (admeasuring 1 A 5 Gs) situated at village Yelvadi, Taluka Khed, District Pune. The Petitioner was the tenant thereof on tiller's day i.e. 1-4-1957 and many years prior thereto. However, as she was a widow, tiller's day was postponed by order dated 19-2-1960 by A.L.T. Khed. She died on 11-5-1973. She was staying at different village near Pandharpur (Solapur District). She was having no near relation i.e. son or daughter. No intimation was given to the village officer regarding her death. The Respondents who are her husband's brother's son, for the first time gave information to the village officer of Yelvadi in writing on 5-7-1975 and for the lands in their favour. Accordingly mutation entry No.180 was made on 6-12-1975. It came to be certified on 26-4-1976. The information thereof was given by them to the Petitioner by letter dated 25-5-1976. Immediately thereafter the Petitioner gave registered notice dated 25-6-1976 to all these heirs with a copy to the Tribunal that he wanted to exercise right of purchase. There is no dispute that they have received the notice.

3. Proceedings under Section 32-G read with Section 32F of Bombay Tenancy Act were started. A contention was raised that the Petitioner has lost his right to purchase land in view of Sec.32F (1 A) as he has not given notice within period of 2 years from the date of death of the landlady. On the contrary it was contended on behalf of the Petitioner that mutation was effected on 6-12-1975 and certified on 26-4-l976 and he received the notice thereof on 21-5-1976 from Respondents and therefore he has exercised the right within a period of one year from that date and he was entitled to purchase. The Additional Tahasildar and A.L.T. Khed accepted the contention of the Petitioner and held that he was entitled to purchase the land and fixed the purchase price under Section 32-G.

4. The Respondents preferred Appeal, which was heard by the Additional Collector, Pune. The Additional Collector held that as notice was not given to Respondents - heirs within period of 2 years from the date of death of the widow-landlady, the provisions of Section 32F (1A) have not been complied with and hence the Petitioner is not entitled to purchase the land. The Petitioner preferred revision and M.R.T. Pune by order dated 16-10-1982 confirmed the same. that is under challenge in this petition.

5. The learned Advocate appearing for the Petitioner submitted that Respondents, who claim to be heirs of the deceased widow Haribai, have not given any intimation regarding her death to the village officer and about acquisition of rights by them in the lands to the village officer as contemplated under Section 149 of Maharashtra Land Revenue Code, 1966. They informed the petitioner by letter dated 21-5-1976 and immediately the Petitioner exercised his right to purchase the land by giving registered notice dated 21-6-1976 to the Respondents as well as to the Tribunal. He submitted that even assuming that the date of making mutation entry is taken as the date to commence the period of one year, even then the Petitioner has exercised his right as contemplated under the provisions of Section 32F(1-A) of the Bombay Tenancy Act as mutation was effected on 6-12-1975. As against this the learned Counsel appearing for the Respondents submitted that it was necessary for the Petitioner to exercise the right and to give the necessary intimation as contemplated by Section 32F (1)(a) read with Section 32F (1A) within 2 years of the death of the landlady. As this was not done the Petitioner has lost his right to purchase the land. He relied upon the judgment of Full Bench of this Court reported in 73 BLR - 792 (1971) Vishnu Shantaram Desai Vs. Smt. Indira Anant Patkar. He further pointed out in case of minor - landlord. Such landlord has to give an intimation of his attaining majority for enabling the tenant to purchase the land, but such requirement is not there in the case of other categories and hence it is necessary to hold that the period begins to run from the date of death of the widow.

6. I shall first note the relevant provisions of 32F(1)(a) as follows :

32F(1) : Notwithstanding anything contained in the preceding sections -

(a) where the landlord is a minor or a widow, or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimation to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31 : Provided that where a person of such category is member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated having regard to the areas, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property and not in larger proportion.

S.32(1A) 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: Provided that, if a tenant holding land from a landlord (who was a minor and has attained majority before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1969) has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-section (1), he may give such intimation within a period of two years from the commencement of that Act.

(2) The provisions of section 32 to 32E (both inclusive) and section 32G to 32R (both inclusive) shall, so far as may be applicable, apply to such purchase.

Section 32(I) deals with landlord's right to terminate the tenant's tenancy for personal cultivation and non agricultural purpose. Section 31(3) extends the period for giving notice and for filing application under Section 29 for getting possession. It says that i) a minor can file within 1 year after attaining majority, (ii) in case of successor in title of a widow within 1 year from the date on which her interest in the land ceases to exist. (iii) in case of person under physical and mental disability within 1 year of ceasing of such a disability. Under Section 32(1)(a) the tenant can exercise the right within a period of one year after the period as contemplated by Section 31 is over. Section 32F (1A) provides that any such tenant desirous of exercising the right should give intimation in that behalf to the landlord and to the Tribunal within the period specified in sub-section 1 of Section 32 F(1). No doubt Section 32F(1)(a) makes a specific provision of intimation in case of minor landlord as mentioned above, and in case of a widow or a person subject to mental or physical disability, there is no such provision. But it is not necessary in the case of widow or landlord under physical or mental disability as the period would refer date or in case of disabled landlord from date of knowledge by tenant of its ceasing. The disabled landlord must show the date of such knowledge so that period would start running. In case of widow landlady, Section 31(3)(ii) says that successor in interest of a widow can ask for possession under Section 29 within 1 year from the date on which her, interest in the land ceases to exist'. The successor in interest must show the date on which widow ceased to have interest and his right was created. That date could be when the mutation is made. The tenant then comes to know who is/are successor/s in interest and to whom notice under Section 32F(1A) is to be given. It is necessary that this provision should be read reasonably so as to advance the object of the enactment and not to frustrate the same. This enactment is designed with a view that the tenants on the tiler's day become owners of the lands. In the absence of such knowledge regarding heirs, it is not possible for a tenant to give intimation as contemplated by Section 327(1A) to them now landlords or successors in interest of the widow. In Section 32F(1A) the word 'landlord' means the persons in whose name the land is mutated. In this case for th first time the mutation in favour of Respondent had taken place on 6-12-1975 and the Respondents were shown as owner. The petitioner has exercised his right by giving intimation to the Respondent and to the A.L.T. on 25-6-1976. Therefore he has clearly exercised such a right within a period of one year from mutation entry dated 6-12-1975 in favour of Respondents on which date widow ceased to have interest in the land. and their rights were created. In my opinion in this case, petitioner has complied with the provisions of Section 32F(1A).

7. The learned Counsel for the Respondents relied upon the full Bench Judgment of this Court reported in 73 BLR (1971) - 793 (cited supra). The main question involved in the said case was whether the provisions of section 32F are in addition to Section 32 of the Bombay Tenancy Act or create additional right in favour of a tenant to purchase the land. It was held that Section 32F does not confer a right to purchase in addition to the right conferred by Section 32. In a case covered by Section 32F, the provisions of Section 32 apply only after an intimation is given as contemplated by Section 32F(1A). It was observed 'the two sections do not confer independent rights or opportunities to purchase land upon a tenant. Section 32F prescribes a special procedure for exercise of a right to purchase land conferred upon a tenant by Section 32 when either a landlord or tenant or both of them are under disability. such a tenant has only one right to purchase. He has to give an intimation under Section 32F (1A) and then the provisions of Sections 32 to 32E (both inclusive) and 32G to 32R (both inclusive) apply to such purchase". the judgment has dealt with facts of 3 Special Civil Applications. The learned Counsel for the Respondents relied upon the facts in Special Civil Application No.1916/1965. It was the case where the land belonged to a landlady Lahanubai who was a widow on the tiller's day. She die on April 13, 1959. One Ganu Rama was a tenant of that land on the tiller's day. He too died in the year 1960 leaving behind his 2 sons - Rangnath and Balu who cultivated the land as tenants. Dispute existed as regards the claim as successor-in-title of widow Lahanubai between Ganpat Sahadu Gangarde and one Yeshwant Kondiba, Finally name of Ganapat was entered in the record of rights on 9-10-1961, as successor in title of widow Lahanubai, On October 14, 1961, Ganpat (now landlord) gave a notice to Ranganath and Balu terminating their tenancy on the ground that he required the land for personal cultivation and ultimately made an application on 18-12-1961 for possession under Section 29 of the Act. In those proceedings, ignoring the objections of the tenants, the Tenancy Awal Karkun passed an order for delivery of possession of half of the land in favour of the landlord. The tenant preferred an appeal which was allowed by the Assistant Collector. The decision of the Assistant Collector was confirmed in revision by M.R.T. In the year 1964 proceedings were initiated under Section 32-G read with Section 32-F of the Bombay Tenancy Act for determination of the price payable by the tenants. The tenants, however, had not give any notice as provided by Section 32F(1A) intimating their desire to exercise their right to purchase the land. The Agricultural Lands Tribunal took the view that as no such intimation was given by the tenants contemplated by Section 32F(1A) the purchase by the tenant has become ineffective. This was confirmed by the Assistant Collector and in Revision by M.R.T. The tenant preferred the petition under Article 227 of Constitution of India and the full Bench in that respect has observed as follows : "The period so prescribed for termination of tenancy by the successor-in-title cannot be extended merely because there existed a dispute as regards who is her success-in-title. Under Sub-section (1-A) read with Section 32F(1)(a) it was obligatory upon Rangnath and Babu (sons of deceased tenant Ganu) to give intimation of their desire to purchase land to the landlord and the Tribunal within a period of one year from the expiry of the period during which the successor-in-title of widow Lahanubai could have terminated the tenancy under S.31. Such an intimation they failed to give and they thus failed to exercise their right to purchase. The Agricultural Lands Tribunal, the Assistant Collector and the Maharashtra Revenue Tribunal were, therefore, right in taking the view that the tenants failed to exercise their right to purchase and the land had to be disposed of in accordance with the provisions of Section 32P of the Act" In view of this Special Civil Application was dismissed. However, this has no application in the present case. In this case though mutation was made on 9-10-1961, the proceedings commenced at the instance of tenant in 1964 and no intimation at all was given as provided by Section 32F (1A). There was no question from what date the time begins to run.

8. The record here shows that the landlady Haribai was staying at different place near Pandharpur. She died inssueless. There were no near heir left by her. The Respondents are her distant relations. They came forward for the first time and claimed the lands and gave the intimation about their right to the concerned village officer on 5-7-1975 and the mutation was effected on 6-12-1975. It was not at all possible for the Petitioner to give the notice/intimation without knowing their names.

9. In my opinion, the ratio of Full Bench judgment in the case of Vishnu Shantaram (cited supra) is not at all attracted in the facts of the present case. It was not the case before the Full Bench where the notice or intimation under Section 32F(1A) was given and the question arose whether it was given within the period or not. It was a clear case where no such intimation at all was given. The phraseology used in Section 32F and in Section 32F(1A) cannot be construed too technically to frustrate the legislative intention or to reduce the provision to futility more so where the enactment is dealing with the agrarian reform and designed to make a tiller on tiller's day owner of the land. If the argument of the learned Advocate for Respondents is accepted then that can easily defeat the object of the enactment. Take the case where widow dies, her heirs have to keep quiet for 2 years and then claim the land, if the tenant on tillers' day thereof tries to exercise his right, a simple answer to frustrate that right is that no intimation is given under Section 32F(1A). This cannot be countenanced as intimation is not to be given in vaccum, but to an individual . this can be done when names of successor in-interest are recorded to the land in the revenue record. It is necessary to interpret these beneficent provisions reasonably and purposefully to advance the object of the legislation.

10. Hence the following order :-

The impugned judgment and order dated 16-10-1982 passed by M.R.T. Pune in Revision No.MRT.P XI 7/88 THN B.341/80), Pune arising out of Tenancy Appeal No.6/1978 are set aside. The judgment and order passed by the Additional Tahasildar and A.L.T. Khed dated 30-11-1977 in No.TNC/32-F/Yelwadi/10/77 is restored.

Rule absolute accordingly.

In the facts and circumstances of the case, there shall be no order as to costs.

Ordered accordingly.