Writ Petition No.2959 of 1983

29th August, 1997

Petitioner Counsel: Mr.M.A. RANE
Respondent Counsel: Mr.A.V. ANTURKAR

Cases Cited:
1959(61) Bom LR 811 [Para 4]
AIR 1983 SC 643 [Para 4]
1959 Supp (1) SCR 489 [Para 4]
AIR 1959 SC 459 [Para 4]

JUDGMENT

JUDGMENT :- The respondents were owners of the land S.No.2/5 admeasuring 5 acres 12 gunthas situate at village Khamgaon, being Mahar Watan land of Inam Class VI-B under the Bombay Inferior Village Watans Abolition Act, 1958, hereinafter referred to as "Watans Abolition Act". The Inam under dispute came to be abolished and resumed by the State with effect from the appointed day viz. 1st August, 1958. The said lands were liable to be regranted to the authorised holder unless the same were found liable to be regranted to the authorised holder under section 6 or unauthorised holder under section 9 of the Watans Abolition Act. The said land came to be regranted to the respondents under the Watans Abolition Act on 25th May, 1963. On 10th October, 1972 the respondents entered into an agreement to sell the lands to the petitioner for a sum of Rs.22,000/-. A sum of Rs.11,000/- out of the total amount of Rs.22,000/- was paid by the petitioner to the respondents under a receipt. It is not disputed that the petitioner was put in possession of the land by the respondents on 6th April, 1957, after accepting 5 years rent and agreeing in writing to permit him to cultivate the land as tenant for 5 years. After entering into the agreement to sell, the respondents made an application to the Collector under section 3(1)(c) of the Watans Abolition Act for a declaration that the petitioner was an unauthorised holder of the land in dispute. The Sub-Divisional Officer who heard the said application by his order dated 30th August, 1970 accepted the claim of the respondents and held that the petitioner was unauthorised holder within the meaning of section 2(1)(x) of the Watans Abolition Act. The petitioner thereafter went in appeal before the Commissioner. The said appeal was heard by the Additional Commissioner. The appeal came to be dismissed by order dated 18th April, 1977. The Commissioner also exercised his suo motu revisional powers and cancelled the order of regrant in favour of the respondents dated 25th May, 1963. This order came to be challenged by the petitioner in Special Civil Application No.1232 of 1977. A Division Bench of this Court by judgment dated 19th June, 1978 held that the petitioner was not an unauthorised holder of the land on any count whatsoever. The finding of the Commissioner as to the liability of the regrant order was cancelled being not sustainable. The Division Bench also observed".

"Even if it were to be so, we are unable to hold that the Tenancy Act does not apply to the land in dispute or that the land is exempt from the Tenancy Act because of the provisions of section 88(1)(a) read with explanation thereto."

This observation was made on the argument advanced by the Counsel for the respondents to the effect that the provisions of Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Tenancy Act", would not be applicable to the facts of the case. Relying on the aforesaid judgment, the respondents filed an application on 1st September, 1979 under section 32-0 and 32-P of the Tenancy Act against the petitioner on the allegations that the petitioner-tenant failed to exercise his right of purchase of the suit land within one year from the commencement of the tenancy. This application was resisted by the petitioner and the claim made by the respondent was denied. The Additional Tahsildar and A.L.T., Phaltan by his judgment and order dated 3rd October, 1980 held that the petitioner failed to exercise the right of purchase within the prescribed period and ordered restoration of the suit land to the respondents. The aforesaid proceedings were numbered as Tenancy Case No.Kharngaon 16/79. From the aforesaid order, the petitioner filed Tenancy Appeal No.33 of 1980 before the Assistant Collector. The appeal was allowed by order dated 28-2-82. The order under appeal was set aside holding that the petitioner had the right to purchase the suit land and remanded the matter back to the Tahsildar for fixation of the purchase price and adjust the amount already paid by the petitioner. The respondents filed revision application before the Maharashtra Revenue Tribunal at Pune against the aforesaid order dated 28th February, 1982. The Tribunal vide its judgment and order dated 10th March, 1983 allowed the revision and set aside the order of the Assistant Collector and Tahsildar, A.L.T. so far as it relates to restoration of possession of the suit land under section 32-P and directed the Tahsildar to hold fresh enquiry under section 32-P and to dispose of the matter according to law. The present writ petition has been filed challenging the order of the Tribunal and for restoration of the order of the Assistant Collector dated 28th February, 1982.

2. Counsel for the petitioner, Mr.Rane, has made a number of submissions which may be noticed. First and foremost, it is submitted, that the Tribunal has erred in law in not considering the findings given by this Court in its judgment dated 19th June, 1978. This Court had categorically held that the provisions of the Tenancy Act would be applicable. The land in question would not be exempted because of the provisions of section 88(1)(a) read with explanation thereto. It has been further held that the question of attracting this exemption from the Tenancy Act will not arise unless it is shown that the Watan in dispute was for a service useful to the Government and secondly that it was assigned as remuneration to the person actually performing such service. It was further held that the Court is unable to see any reason to hold that the lease in favour of the petitioner by the respondents was void or not lawful in any manner whatsoever. If the lease is not hit by any provision of any enactment, the same shall be deemed to have been lawful and it cannot be held that the petitioner was unauthorised holder of the land on any count whatsoever. The petitioner's case has been held to be clearly covered by section 8 of the Act as the lease created in favour of the petitioner was perfectly lawful and the same was subsisting on the appointed day i.e. 1-8-1959. It is further submitted that the Tribunal erred in law that provisions of section 32-0 of the Tenancy Act are applicable and that the petitioner has failed to exercise his right within a stipulated period of one year from 6th April, 1957. It has wrongly been held by the Tribunal that by virtue of the order of the Tahsildar, purchase of the suit land has been declared as ineffective although it is not so stated in express words. It is further submitted that the Tribunal has failed to exercise its jurisdiction in not considering that the provisions of the Tenancy Act would apply by virtue of section 8 of the Watans Abolition Act. Therefore, provisions of the Tenancy Act would apply with effect from the appointed day which is 1-8-1959. Further the provisions of Tenancy Act would apply subject to the provisions of the Watans Abolition Act. Thus if any of the provisions of the Tenancy Act are inconsistent with the provisions of the Watans Abolition Act, then the provisions of Watans Abolition Act would be applicable. The Tribunal held that:

"From perusal of the facts on record it is abundantly clear that the suit land which was a matar watan land of Class VI-B has been converted into a rayatwari tenure land, as a result of the passing of the Abolition Act on 1-8-58 and that by virtue of section 8 of the Abolition Act, the provisions of the Tenancy Act have been made applicable to it. In other words, the lease of the land in suit which was created in favour of the opponent on 6-4-57 prior to the coming into force of the Abolition Act continued thereafter and came to be governed by the Tenancy Act. It is undisputed that the lease was created after the Tillers' day i.e. 1-4-57. It is also in evidence that the lease agreement was passed whereby the opponent tenant was to cultivate the suit land as such on payment of rent of Rs.30/- per annum upto the year 1963. Thus, the contractual tenancy which was already in existence prior to the Abolition of the watan continued thereafter on the application of the Tenancy Law. The learned Advocate Shri Avhad's submission that the right of purchase would accrue to the opponent tenant on the date of the regrant order cannot, therefore, be accepted. Had there been a lease created prior to 1-4-57, then it could have been rightly held that the opponent became a deemed purchaser of the land in suit, if not on 1-4-57, then, on the date on which the order of regrant was made. This is not the position here. The date of commencement of Tenancy has remained unquestioned, being after the Tillers' day i.e. 1-4-57. If so, the provisions of section 32-0 must be pressed into service."

By virtue of section 88(1)(a) read with the explanation thereto of the Tenancy Act, the provisions of the Tenancy Act would not apply. The Tribunal has misconstrued the observations of the High Court in the earlier judgment to the effect that the provisions of the Tenancy Act would be applicable. It is submitted that the observations of the High Court were to the effect that provisions of the Tenancy Act would be applicable in view of section 8 of the Watans Abolition Act. This Court having held that the case of the petitioner is squarely covered by section 8 of the Watans Abolition Act, the petitioner would be entitled to the regrant of the Watan lands under section 6 of the Watans Abolition Act. This Court has categorically held while rejecting the application of the respondents under section 3(1)(c) of the Watans Abolition Act that the petitioner is not an unauthorised holder. It is then submitted by Mr.Rane that under the provisions of the Watans Abolition Act a person can only be authorised holder of watan land which has been given as an inam to a watandar. Watan Property under the Act is defined as the movable or immovable property held, acquired or assigned under the existing Watan law for providing remuneration for the performance of the duty appertaining to an inferior village hereditary office. Admittedly the land in question is mahar watan. According to the Counsel that this Court in its order and judgment dated 19th June, 1978 had observed that the provisions of the Tenancy Act would apply only to clarify that the exemption under section 88(1)(a) read with the explanation, of the Tenancy Act, would not be attracted. That section and the explanation provides that nothing in the foregoing provisions of the Act shall apply to land belonging to or held on lease from the Government. The explanation states for the purposes of Clause (a) of sub-section (1) of this section, land held as inam or watan for service useful to Government and assigned as remuneration to the person actually performing such service for the time being under section 23 of the Bombay Hereditary Offices Act, 1874, or any other law for the time being in force shall be deemed to be the land belonging to Government. It was held by this Court that there is no question of attracting the exemption of the Tenancy Act unless it is shown that the watan in dispute was for a service useful to the Government and assigned as remuneration to the person actually performing such service. In view of this it was held that the land does not attract the provisions of section 88(1)(a) read with explanation thereto and cannot be said to have been exempted from the operation of the Tenancy Act. In view of the fact that the Division Bench has also restored regrant to the respondents, Mr.Rane has submitted that the petitioner would be entitled to the purchase of the lands under the provisions of the Tenancy Act. It is submitted that undisputably lease in favour of petitioner was created and the petitioner was put in possession of the land w.e.f. 6th April, 1957. The Tillers' day as defined under the Tenancy Act is 1st April, 1957. The appointed date under the Watans Abolition Act is 1st August, 1959. Admittedly the lease was subsisting till 1963. Admittedly also the respondents had agreed to sell the lands to the petitioner in 1972 for a consideration of Rs.22,000/-. The provisions of the Tenancy Act came to be applied to the Watan lands by virtue of section 8 w.e.f. 1st August, 1959. It is, therefore, submitted by the Counsel for the petitioner that the relevant date for the purpose of purchase of the suit lands would be the date of regrant i.e. 25-5-1963. Therefore, the Tribunal has committed an error of law in holding that the petitioner is disentitled from any relief in view of the fact that he did not exercise his right under section 32-0 within the stipulated period. The said lease which was granted on 6th April, 1957 subsisted on the appointed date. This has been held to be a valid lease by the Division Bench. No fresh lease was executed by the respondents after 1-8-59 being the appointed date under the Watans Abolition Act. Prior to the appointed date i.e.1-8-59 tenancy laws were not applicable to watan lands. In view of section 32-G(6) the Tillers' day 1-4-57 is to be read as 25-5-63. The title automatically passed to the petitioner on 25-5-63. Lease was created on 6-4-57. Thus the petitioner is in the same position as the tenant of non-watan land, having valid tenancy in his favour prior to the Tillers' day viz. 1-4-1957. Having held that the provisions of the Tenancy Act apply, the Tribunal failed to exercise its jurisdiction in not recognising the title of the petitioner by virtue of section 32-G(6). It is further submitted that section 32-G provides that the Tribunal shall give a public notice to all tenants who under section 32 are deemed to have purchased the lands. The Tribunal is duty bound to record the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. It is only on the failure of the tenant to appear or make a statement before the Tribunal, that he is not willing to purchase the lands, that the Tribunal has the power to declare that the purchase is in effect. It is, therefore, submitted by Mr.Rane that it was incumbent on the Tribunal to issue the requisite notice. No such notice was issued. In view of the above, it is submitted that the petitioner is the deemed owner of the land. He is deemed to have purchased the same w.e.f. 25-5-63.

3. Mr.Anturkar, learned Counsel appearing for the respondents, on the other hand has submitted that the writ petition deserves to be dismissed at the threshold for delay and laches on the part of the petitioner. It is also submitted that the writ petition deserves to be dismissed on the principles of constructive res judicata and also in view of Order 2, Rule 2 of the Civil Procedure Code. To make good the submissions the Counsel has submitted that the order dated 23rd May, 1963 regranting the land to the respondents has not been challenged by the petitioner till date. The regrant has been upheld by the Division Bench. Thus, it would not lie in the mouth of the petitioner to say that the land ought to be regranted to him. The submissions which are made by the Counsel ought to have been made in the earlier proceedings. No such submissions have been made. Thus they cannot be permitted to raise these points at this stage for the first time. Admittedly, according to the Counsel, lease was granted to the petitioner on 6th April, 1957. The application under section 3(1)(c) was made in 1974. None of the pleas which have been raised now were raised therein. Order of regrant was cancelled by the Tribunal in its order dated 18th April, 1977. Inspite of this, no plea whatsoever has been raised in the writ petition that the cancellation of the regrant in favour of the respondents was correctly made by the Tribunal.There is also no prayer to the effect that the land ought to be granted in favour of the petitioner. The petitioner has suffered the wrong order for such a long time. He cannot now be permitted to re-agitate the same. Even under Article 100 of the Limitation Act the petitioner would have to take out necessary proceedings within a period of one year. By virtue of section 8 of the Watan Abolition Act, the petitioner had gained a right of regrant of the land under section 6 with effect from 1st August, 1959. The petitioner made no such claim. He has rather defended the order of regrant in favour of the respondents. In any event even if by virtue of section 8, the petitioner would be entitled to regrant of the land under section 6 of the Watan Abolition Act, in view of the order of the Division Bench the petitioner can make no such claim. The land cannot be regranted to the landlord as well as the tenant.

4. I have given careful consideration to the submissions made by the Counsel for the parties. A perusal of the judgment of the Tribunal shows that the Tribunal has proceeded on the basis that the petitioner has failed to exercise his right within a period of one year from 6th April, 1957. The Tribunal has failed to consider that the provisions of the Tenancy Act were made applicable by virtue of section 8 of the Act w.e.f. 1-8-59. The suit land was regranted to the landlord on 25-5-1963. No fresh lease of tenancy was made between 1-8-59 and the date of regrant. The Tribunal has also failed to consider that it is for the Tribunal to issue the necessary notice under section 32-G of the Tenancy Act. Provisions of section 32-0 have been construed to mean that the period of one year has to be from the date of commencement of the tenancy after the Tillers' day i.e. 1-4-57. The impact of the Watans Abolition Act has not been considered at all. A perusal of section 32 shows that on the first day of April, 1957 the tenant is deemed to have purchased the land held by him. The tenant has to be a permanent tenant and must be cultivating the land personally. In view of section 32-0 the tenant is given a right to purchase the said land within one year from the commencement of the tenancy if the same was created after the Tillers' day. The Tillers' day would not be relevant for the purpose of watan lands till the provisions of the Tenancy Act was made applicable thereto by virtue of section 8 of the Watan Abolition Act No.1 of 1959. The lease, if any, would have to be created after the order of regrant. No such lease could be created as between 1-8-59 and the date of regrant 25-5-63 as the suit land was vested in the Government. It is only on regrant that the landlord again became owner of the suit land. The legality of the lease in favour of the petitioner has already been upheld by the Division Bench in earlier proceedings. The notice, if any, would have to be given by the Tribunal after 25-5-63, that being the date of regrant. The tenant is not required to do anything. He has to respond to the notice issued by the Tribunal under section 32-G. It is only in the event that the tenant fails to appear before the Tribunal or give a statement to the effect that he is not willing to purchase the land, that his purchase can be declared in effect. There is no question of any title being passed to the tenant, by any order of the Court. That title passes by virtue of section 32 of the Tenancy Act. The title is deemed to have passed on 25-5-63, the day of regrant of the suit land to the respondent. This is so in view of the provisions of section 32-G(6) of the Act, which provides as under :

"32-G(6) If any land which, by or under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it was not transferable was not the condition of regrant."

In this view of the matter I am of the considered opinion that the Tribunal has committed an error of jurisdiction while holding that the petitioner has not complied with the provisions of section 32-0 of the Act. In fact, the reasoning adopted by the Assistant Collector in his order dated 28th Feb., 1982 is in accordance with the observations of the Division Bench. The Assistant Collector has observed that the appellant is lawful holder of the land. The tenant had a registered lease in his favour. He is in lawful possession of the suit lands since 6th April, 1957. Therefore, the provisions of section 32-0 would not be applicable. The issue of passing of the title has been examined by a Constitution Bench of the Supreme Court in case of (Sri Ram Ram Narain Medhi v. State of Bombay), 1959(61) Bombay Law Reporter 811. The aforesaid judgment has been followed by the Supreme Court in the case of (Amrit Bhikaji Kale v. Kashinath Janardhan), A.I.R. 1983 S.C. 643. In paragraph 6 of the said Judgment it is observed as follows:

"The Tenancy Act was comprehensively amended by Amending Act 15 of 1957. The amendment brought in a revolutionary measure of agrarian reforms making tiller of the soil the owner of the land. This was done to achieve the object of removing all intermediaries between tillers of the soil and the State. Section 32 provides that by mere operation of law, every tenant of agricultural land situated in the area to which the Act applies shall become by the operation of law, the owner thereof. He is declared to be a deemed purchaser without anything more on his part. A Constitution Bench of this Court in Sri Ram Ram Narain Medhi v. State of Bombay, 1959 Supp. (1) S.C.R. 489 at p.518 : A.I.R. 1959 S.C. 459 at p. 472 held that:

"The title of the landlord to the land passes immediately to the tenant on the Tillers' day and there is a completed purchase or sale thereof as between the landlord and the tenant. The title of the land which was vested originally in the landlord passes to the tenant on the Tillers' day and this title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal."

Therefore, it is unquestionbly established that on the Tillers' day, the landlord's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant. That very moment landlord tenant relationship as understood in common law or Transfer of Property Act comes to an end. The link and chain is broken. The absent non-cultivating landlord ceases to have the ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable. The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under section 32-G. In other words, the landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the State. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant. Tarachand landlord was under no disability as envisaged by section 32-F. Therefore on April 1, 1957 Janardhan became deemed purchaser and Mr.Lalit could not controvert this position."

A perusal of the aforesaid observations leave no manner of doubt that section 32 provides that by mere operation of law, every tenant of agricultural land situated in the area to which the Act applies shall become by the operation of law, the owner thereof. He is declared to be a deemed purchaser without anything more on his part. In the present case it has already been noticed that no notice has been issued by the Tribunal as required under section 32-G. It is also to be noted that the land was actually agreed to be sold to the petitioner on 10th October, 1972. The landlords had received the rent for 5 years. They have also received Rs.11,000/- as part of the consideration. Therefore, in law as well as in equity there is no merit in the claim of the respondents.

5. In view of the fact that nothing is required to be done by the tenant for acquiring the title of the suit land, I do not find any substance in the submissions made by Mr. Anturkar with regard to delay and laches and constructive res judicata. The just claim of the petitioners cannot be thrown out on the grounds of delay and laches. Even otherwise I am of the view that there is no delay or laches on the part of the petitioner. Immediately after agreeing to sell the land to the petitioner, the respondents took out proceedings under section 3(1)(c) of the Watans Abolition Act. These proceedings culminate in the judgment delivered by the Division Bench of this Court on 19th June, 1978.Thereafter the respondents again took out proceedings for restoration of possession under section 32-0 and P of the Tenancy Act. It is these proceedings which are being disposed of today. In these circumstances it would be unfair to hold that the petitioner can be non-suited on the ground of delay and laches. With regard to the claim of the petitioner for regrant of the lands no order can be passed in view of the observations made by the Division Bench.

6. By virtue of the provisions of section 32-G(6) the Tillers day of any land regranted under the Land Tenures Abolition Acts has to be the date of regrant of the land. Since the tenancy in this case was admittedly created on 6-1-1957 and there is no fresh tenancy created after 25-5-63 it would have to be held that a tenant of the watandar would be deemed to have purchased the land as on 25-5-63. This would put the tenant of the watandar at par with the tenant of the non watan land under the Tenancy Act, who is a deemed purchaser of the land on the Tillers day i.e. 1-4-1957. Thus for the purpose of Watan Abolition Act, the "date of regrant" (25-5-63 in this case) shall correspond to the "Tillers day" under the Tenancy Act 1-4-57. Keeping the aforesaid in view the petitioner would be a deemed purchaser w.e.f. 25-5-63. Under section 8 the provisions of Tenancy Act have been made applicable from 1-8-59. The lease in favour of the petitioner being made on 6-4-57, is earlier in time to 25-5-63, thus the question of applicability of section 32-0 does not arise.

7. In view of the above, the writ petition is allowed. Rule is made absolute in terms of prayer Clause (b).

Certified copy expedited.

Petition allowed.