Civil Apeal No.6158 of 2002

15th September, 2008

Petitioner Counsel: Mrs. K. SARADA DEVI
Respondent Counsel: SIDDHARTH BHATNAGAR, PAWAN KUMAR BANSAL, Mrs. V. D. KHANNA, SHIVAJI M. JADHAV, MAKARAND D. ADKAR, VIJAY KUMAR, VISHWAJIT SINGH

Cases Cited:
Anna Bhau Magdum Vs. Babasaheb Anandrao Desai, 1995(5) SCC 243 [Para 13]
Appa Narsappa Magdum Vs. Akubai Ganapati Nimbalkar, 1999(4) SCC 443 [Para 13]
Sudam Ganpat Kutwal Vs. Shevantabai Tukaram Gulumkar, 2006(7) SCC 200 [Para 13]
Teja Singh Vs. State of Punjab, 1995(4) SCC 540 [Para 18]

JUDGMENT

TARUN CHATTERJEE, J.:- This is an appeal by special leave against the judgment and order dated 9th of June, 1999 of the High Court of Judicature at Bombay in Writ Petition no.4600 of 1983, whereby the High Court had affirmed the decision of the courts below.

2. The relevant facts leading to the filing of this appeal, as emerging from the case made out by the appellant may be summarized as follows :

3. The dispute arose out of the provision of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") relating to the land being Gat No.44, measuring 5 Hectares and 24 Acres in village Malangaon, Kavathe, Mahankal Tahsil of Sangli District in the state of Maharashtra (in short "the disputed land"). Late Smt. Narmadabai who was a widow, was the original land-owner of the disputed land. She died in 1964 leaving behind her two sons Ramchandra and Laxman Bhau Sutar. On 1st of April, 1957, i.e. on the Tiller's Day, the Appellant was in cultivation of the disputed land. The original tenant named Maruti died subsequently in 1994 during the pendency of the Writ Petition in the High Court of Judicature at Bombay. The original tenant had initiated proceedings under Section 32-G of the Act before the Additional Tahsildar, Kavathe Makhanlal, and the case was decided in his favour with the purchase price of the disputed land being fixed. Thereafter, one of the heirs of the deceased land-owner Narmadabai, named Laxman, preferred an appeal to Appellate Authority against the said order. After the matter was remanded back to the Additional Tehsildar, again an order affirming the previous position was passed in favour of the tenant under Section 32-G. This time, the other heir of Late Smt. Narmadabai, namely Ramchandra, challenged the said order before the Sub-Divisional-Officer, Miraj, and he again by his order dated 31st of March, 1978, remanded the matter to the Tahsildar for a detailed enquiry and decision on the following points :

"(1) The clear title of the disputed land of the applicant Ramchandra should be enquired.

(2) The point of giving notice u/s.32-F of the Act to the landlord and the Agricultural Lands Tribunal should be enquired as per the provisions under Section 32-F of the Act."

4. When the matter came up before the Tahsildar, he passed an Order holding the 2nd Respondent as the sole owner of the disputed land. The purchase of the disputed land by the Appellant was therefore declared to be ineffective for want of notice under Section 32-F and the disputed land was ordered to be disposed of under Section 32-P of the Act. Thereafter, the Appellant preferred a revision before the Maharashtra Revenue Tribunal but the same was dismissed. Being aggrieved by the decision of the Tribunal, the Appellant filed a Writ Petition before the Bombay High Court on 28th of December, 1983. The Bombay High Court by its impugned judgment and order dated 16th of April, 1999, dismissed the said Writ Petition on the ground that the Respondent (Ramchandra) was the sole owner of the disputed land in pursuance of the letters of administration obtained by him from the Civil Court. It is this decision of the High Court, which is impugned in this appeal in respect of which the Writ Petition was filed.

5. During the pendency of the Writ Petition before the High Court, Respondent No.2 executed a sale deed of the disputed land and though he was duty bound to inform the Court about this deed, he did not inform the same to the Court.

6. The main issue that was framed by the High Court in deciding the above-mentioned Writ Petition was whether giving of notice under Section 32-F was mandated for the tenant and whether on failure of giving such notice, the tenant had lost the right of purchase and whether the orders of the Tahsildar, the Appellate Court i.e. the Sub-Divisional Officer and the Revisional Court i.e. the Maharashtra Revenue Tribunal were liable to be interfered with. It was against this background that the High Court had held that section 32-F is mandatory in nature and there has to be a strict compliance of it. The High Court went on to say that inspite of the fact that the tenant had initiated proceedings under section 32-G and even if he had paid some instalments towards the price of the land, the same cannot be considered as substantial compliance resulting in dispensation of the mandatory requirement of section 32-F. Therefore, considering the fact that the tenant had failed in his duty to issue a written notice to the owner of the land i.e. Respondent No.2, as required under Section 32-F, he has lost his right to purchase the disputed land. The Writ Petition was therefore dismissed by the High Court. Feeling aggrieved by the aforesaid decision of the High Court, this Special Leave Petition was filed which, on grant of leave, was heard in presence of the learned counsel for the parties.

7. We have heard the learned counsel for the parties and examined the impugned judgment of the High Court and also the orders passed by the Tahsildar, Appellate Court and the Revisional Court. We find that the High Court noticed the provision of Section 32-F of the Act, in so far as it is relevant, which reads as follows :

"(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 a 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 area, 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 a larger proportion].

(b) ---------- (omitted, as it is not relevant for our purpose).

(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."

8. The High Court further went on to refer Section 31(3) of the Act, which so far as it is relevant reads as follows :

"(3) Where a landlord is a minor, or a widow, or a person subject of mental or physical disability, then such notice may be given [and an application for possession under section 29 may be made,]-

(i) by the minor within one year from the date on which he attains majority;

(ii) by the successor-in title of a widow within one year from the date on which her interest in the land ceased to exist;

(iii) within one year from the date on which mental or physical disability ceases to exist; and

[Provided that where a person of such category is a 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 area, 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 a larger proportion]."

9. We have examined the aforesaid provisions of the Act on which the High Court had placed strong reliance. In our view, the interpretation given by the High Court in the impugned judgment of the aforesaid provisions cannot be faulted with. It must be said that the High Court in its impugned judgment, correctly noticed that sub-section (3) of section 31 provides that the landlord under disability and intending to exercise a right under this chapter shall give a notice terminating the tenancy and if the landlord is a widow then the notice can be given by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist. In the present case when the widow Narmadabai died, she ceased to have interest in the land and therefore the right of Ramchandra, as her successor-in-interest, to give notice under section 31 to the tenant gets extended for one year from the death of Narmadabai, i.e. till the 12th of January, 1965.

10. The learned counsel on behalf of the Appellant contended that if Sections 31 and 32-F are read together, then the tenant is not required to give any notice to the landlord because neither Narmadabai nor her successor-in-interest ever gave any notice to the tenant under Section 31 of the Act. Counsel for the Respondent on the other hand contended that Section 32-F is a complete section in itself and the provision of the earlier sections cannot influence or have over riding effect. He therefore contended that whatever be the right of the landlord under section 31, the same gets separated by virtue of the provisions of section 32-F. This contention was negated by the counsel for the Appellant arguing that section 32-F cannot be said to have over riding effect on all the earlier sections. Against this backdrop, the High Court arrived at the following findings :-

"Sub-section (2) of section 32-F provides that the provisions of section 32 to 32-E (both inclusive) and section 32-G to 32-R (both inclusive) shall so far as may be applicable, apply to such purchase. As against this, section 32-F begins with the wording 'Notwithstanding anything contained in the preceding sections...'. Both these sections namely, section 32-F(1) and 32-F(2) if interpreted in proper perspective and harmoniously keeping in view the object of section 32-F, then it becomes clear that it could be said that sub-section (2) of section 32-F is an exception to sub-section (1) of section 32-F but at the same time it has to be borne in mind that exception carved out by sub- section (2) is limited to the sections referred to in it, namely, section 32 to 32-E (both inclusive) and 32-G to 32-R (both inclusive). Since section 31 is not included in sub-section (2) of section 32-F and since section 32-F in sub-section (1) provides 'Notwithstanding anything contained in the preceding sections', then it has to be held that right given to the landlord under section 31 has nothing to do with the right given to the tenant under section 32-F for purchasing the land and consequently it has to be held that a tenant in this case was under legal obligation or statutory duty to give notice of his intention to purchase the land as contemplated under section 32-F.

The High Court further went on to observe :

".....if section 32-F is held to be mandatory in its character then there has to be a strict compliance thereof. Secondly, that the tenant had initiated proceedings under section 32-G, that order was set aside by the SDO in the appeal and the matter was remanded for fresh enquiry in respect of the two points referred to above. Therefore, even if the tenant had initiated proceedings under section 32-G and even if he had paid some installments and the price of the land, the same cannot be considered as substantial compliance resulting in dispensation of the mandatory requirement of section 32-F...."

11. Having heard the learned counsel for the parties and after examining the judgment under Appeal as well as the orders of the other authorities, and other materials on record including the depositions of the parties before them, we are of the view that this appeal deserves to be dismissed for the reasons set out herinafter.

12. In our view, the High Court correctly pointed out that the provisions of Section 32-F are independent in nature and are separate from the provisions under Section 31 of the Act. The exception mentioned under Section 32-F(1) to sub-section (2) is limited to the sections referred to in it, i.e., from Section 32 to 32-E (both inclusive) and 32-G to 32-R (both inclusive). Further the expression "Notwithstanding anything contained in the preceding sections" under sub-section (1) of Section 32-F are of paramount importance. Considering the fact that Section 31 is not included in the sections mentioned under sub-section (2) of Section 32-F, and the expression "Notwithstanding anything contained in the preceding sections" under sub-section (1) of Section 32-F, we are of the view that the right given to the landlord under section 31 has nothing to do with the right given to the tenant under Section 32-F for purchasing the land and consequently it has to be held that the appellant in this case was under a legal obligation or statutory duty to give notice of his intention to purchase the land as required under Section 32-F. We also agree with the view of the High Court that even if the proceedings were initiated under Section 32-G by the tenant initially, he cannot claim to be exempted from complying with the mandatory requirement of serving a notice to the landlord as contemplated under Section 32-F which mandated under the Act and commands strict compliance thereof.

13. In the case of Anna Bhau Magdum since deceased by his LRs. Vs. Babasaheb Anandrao Desai [1995(5) SCC 243], this Court held that there is no automatic purchase of a land by a tenant in cases where the landlord happens to be, inter alia, a widow and the right of purchase can be effective only when exercised in accordance with the provisions of section 32-F, i.e., by giving a notice in writing within a period of one year from the date on which the right of the landlord to terminate the tenancy comes to an end after the death of a widow. In the present case, therefore, the Appellant was duty bound to comply with the mandatory requirement to serve a notice intending to purchase the disputed land under Section 32-F to the landlord as well as to the Tribunal. In the case of Appa Narsappa Magdum since deceased by his LRs. Vs. Akubai Ganapati Nimbalkar and Ors [1999(4) SCC 443], this Court held that the intimation to be provided by the tenant under Section 32-F(1)(a) has to be given according to the provisions laid down in the said section. This Court, in the said case, had negated the contention that the concerned Act, being a welfare legislation, enacted for the benefit of the tenants, should be construed in a liberal manner. The Court in its judgment stated in paragraph no.4 that "We cannot accept this submission because language of the Sections 32-F and 31 is quite clear and the period of one year will have to be counted in accordance with the said provisions and not from the date of the knowledge of the tenant. The provision of law being clear, we cannot in such a case, grant relief on the basis of equity." Again in Sudam Ganpat Kutwal Vs. Shevantabai Tukaram Gulumkar [2006(7) SCC 200], relying on counsel for the parties in their submissions, this Court has clearly summarized the position of law. The paragraphs relevant to this case are 23(c) to 23 (e) which have been laid down herein :

"23(c) A landlord has a right to give notice and make an application for possession after terminating the tenancy, if he wanted the land bonafide for personal cultivation, provided the notice was served on the tenant on or before 31.12.1956 (with copy to the Mamlatdar) and application for possession under section 29 was filed on or before 31.03.1957.

(d) A landlord widow also entitled to make an application for possession under sub-section (1) of section 31 of the Act. Sub-section (3) of section 31, which is an enabling provision, extends the time within which the widow can seek possession under section 31(1) of the Act, beyond 31.12.1956. As a result, where the landlord is a widow, then the notice required under sub-section (1) of section 31 may be given and the application for possession under section 29 may be made by her so long as her interest in the land exists. Such notice can also be given by the successor-in-title of the widow within one year from the date on which the interest of the widow in the land ceases to exist.

(e) Where the landlord is a widow [and she does not exercise her right under section 31(1) of the Act], the right to purchase under the deemed purchase is postponed till the expiry of the period during which such (disabled) landlord is entitled to terminate the tenancy under section 31(3). The tenant desirous of exercising such right shall, however, give an intimation in that behalf to the landlord and the Tribunal within one year thereafter, as required under section 32-F (1-A).

Consequently, where the landlord, being a widow as on 1.4.1957, does not choose to terminate the tenancy for personal cultivation, the tenancy continues during her lifetime and on the death of the widow, her successor-in-title will have the right to terminate the tenancy within one year from the date of the death of the widow. The tenant has the right to purchase such land, under section 32 within one year from the expiry of the period during which such successor-in-title of the widow is given the right to terminate the tenancy under section 31(3) by giving an intimation as required under section 32-F (1-A)."

14. It is pertinent to mention here that the above-mentioned case has been cited by the Appellants to contend before us that the required notice under section 32-F is not mandatory in its nature. However we do not agree with this argument advanced by the learned counsel appearing on behalf of the Appellants. The required notice is not mandatory only in a case when a widow land lady has already exercised her right under section 31(1), i.e. when during her life time, a notice is served to the tenant that the landlady requires the land bonafide. Once a notice under section 31(1) is served by such a widow landlady, the further benefit of section 31(3) is not available. Paragraph No.23(f) at page no.210 of the above-mentioned case and paragraph no.27 of the same are of relevance to illustrate our point :

"23.(f) Where a landlord, who is a widow, exercises her right of termination and secures possession of part of the tenanted land for personal cultivation under section 31(1) of the Act, then there is no question of her successor-in- title giving a notice of termination within one year from the date on which the widow's interest ceases to exist. When section 31(3) ceases to apply, section 32-F also will not apply and there is no need for the tenant to give any intimation under section 32-F(1-A)."

"27. Learned counsel for the respondent relied on the decisions of this Court in Amrit Bhikaji Kale Vs. Kashinath Janardhan Trade, Anna Bhau Magdum Vs. Babasaheb Anadrao Desai, Appa Narsappa Magdum Vs. Akubai Ganapati Nimbalkar and Balchandra Anantrao Rakvi Vs. Ramchandra Rukaram to contend that the tenant has to issue a notice under section 32-F within the period prescribed and if he fails to do so, he loses the right to purchase the land and the landlord will become entitled to the same absolutely. These were all cases where the landlord under disability had not sought possession for personal cultivation under section 31(1) and where admittedly, sections 31(3) and 32-F applied and consequently, there was an obligation on the part of the tenant to send an intimation under section 32-F (1-A). None of the cases related to a widow landlord who had terminated the tenancy during her lifetime and taken possession of a portion of the tenanted land. Therefore, the said decisions will not apply".

15. The above-mentioned proposition clearly establishes the fact that with regard to Section 31(1), once a notice has been served under that provision, the further benefit of Section 31(3) cannot be obtained by the legal heirs of the widow. But, in case when Section 31 has not been availed of by the widow as we can see in the present dispute, Section 31(3) would definitely apply.

16. The learned counsel appearing on behalf of the appellant has argued before us that the Appellant could not serve a notice to the land-owner since he was not sure about the title of the disputed land owing to a dispute between the two sons of Late Smt. Narmadabai who were claiming the title of the disputed land. We cannot accept this contention of the Appellant. The order passed by the Tahsildar, Kavathe Mahankal, lays down the fact that Shri. Ramchandra, Respondent No.2 in this case, had produced a certified copy of the Judgment and order dated 28th of April, 1966, passed by the Joint Civil Judge Sr. in Misc. Application No.25 of 1965 in which it has been declared that Shri. Ramchandra is the owner of the disputed land on the basis of the will executed by his mother Late Smt. Narmadabai. The appellant also in his deposition admitted that :

"The owner of the said land was Smt. Narmadabai Bhau Sutar. Narmadabai died before 10/12 years. Ramchandra Bahu Sutar filed suit on the basis of will, and got transferred the land of Narmadabai in his name."

17. The original tenant, even after the second remand had clearly admitted before the same court in his statement dated 16th of March, 1981, that Shri. Ramchandra alone had become the sole owner of the disputed land by virtue of the decision of the Civil Court on the strength of the will. Going by the above mentioned records, we are of the firm view that the Appellant had a complete knowledge about the title of the disputed land in question. Therefore his submission that he had no knowledge about the real owner, cannot be accepted.

18. Further for the sake of argument even if we assume that the Appellant had no knowledge about the title of the disputed land, nothing prevented him from serving a notice as to his intention of purchasing the land to both the brothers contesting for the disputed land or either one of them according to the provisions of Section 32-F. This Court, in the case of Teja Singh and Others Vs. State of Punjab and Another [1995(4) SCC 540], has observed that in the matter of land acquisition, service of notice on one of the co-owners is necessary and will therefore be construed as service on all the co-owners. The appellant has argued that he had on more than one occasion conveyed about his willingness to purchase the land to both the brothers and that his intention to do so was known by both of them. However, it does not absolve him from the duty of providing a written notice in terms of Section 32-F of the Act. Moreover, the Appellant himself admitted before the Tahsildar, Kavathe Mahankal, that he had not served any written notice to either of the two brothers mentioning his intention. This can be identified from the statement of the Appellant on the 8th of October, 1976 and the 16th of March, 1981 whereby he stated :

"Narmadabai died before 10-12 years. I have not served the notice on the owners. I have informed them orally regarding the purchase from time to time. I have not served notice in writing. There were disputes amongst the brothers. Because of that I could not serve the notice regarding the purchase of the land as per section 32(F). Due to no knowledge of law I am not aware of the service of the notice".

19. For the reasons aforesaid, we are of the view that the High Court was justified in passing the impugned judgment and there is no infirmity in the impugned order for which we can interfere with the order of the High Court. Since we have already held that the service of the notice under Section 32-F was mandatory and by failure to serve such a notice under the said section, the Appellant had lost his right to claim the disputed land.

20. Accordingly the Appeal is dismissed. There will be no order as to costs.

Appeal dismissed.