BABU VITHU GAIKWAD (DEAD) BV. LRS. v. CHINTAMAN SADASHIV AND ORS

Citation: [2007] 6 S.C.R. 1067

Court: Supreme Court of India

Bench: A.K. MATHUR, TARUN CHATTERJEE

Case summary

BABU VITHU GAIKWAD (DEAD) BV. LRS. v. CHINTAMAN SADASHIV AND ORS.pdf

Judgment text

BABU VITHU GAIKWAD (DEAD) BV. LRS. "" ~ v. CHINTAMAN SADASHIV AND ORS. MAY 16, 2007 [A. K. MATHUR AND TARUN CHATTERJEE, JJ. ] Rent Control and Eviction: ,. ;-'... Bombay Tenancy and Agricultural Lands Act, 1948; Ss. 29, 31, 32 and 33: Issuance ofnotice for termination oftenancy-Landlord failing to initiate proceedings against tenant under s. 29 of 1948 Act-Tenant filing an application under s. 32F and 320 of the Act for purchasing the tenanted premises-Rejected by the Authority-Appeal allowed by the Appellate Authority remitting the matter back to the Authority for disposal afresh- Authority directing the tenant to initiate proceeding in terms ofs. 32P ofthe Act as his right to purchase the property in question forfeited in terms of provisions u/s. 32F of the Act-On appeal, Appellate Authority remitting back the matter to the authority for fixation of the price of the property in r .

> accordance with the Law-Filing of Review Petition by Landlord before Maharashtra Revenue Tribunal-Allowed by the Tribunal-Challenge to- Dismissed by High Court-On appeal, Held: s. 320 rlw s. 33 ofthe Act deal with the right of the Landlord to terminate the tenancy on the ground of personal use-On the contrary s. 32F deals with the right of the tenant to purchase the land in case the Landlord is a minor-They contradicts each other as in case Landlord exercise his right, the tenant cannot and viceversa-Besides, an error on the part ofthe Landlord does not mean that the tenant's right under s. 32F could be evoked automatically-Tribunal was . --(· right in observing that the Appellate Authority holding the tenant to be deemed purchaser without complying with the requirements offarnishings the requisite intimation in terms ofs.

32F ofthe Act-Tribunal is duty bound to give opportunity to the Landlord/any of the party to be heard before deciding the value ofthe Land-Since intimation as furnished by the tenant was inconsistent with law, Appellate Authority erred in holding the tenant as deemed purchaser--:-Hence, the order of the Tribunal as affirmed by the ·-. High Court upheld. Appellants are heirs and legal representatives of the original tenant in respect of an agricultural land, which was owned by the father of respondent No. 1. Respondent No. 1 issued notice to the tenant for termination of his tenancy in respect of the said land. However, he had failed to initiate proceedings under Section 29 of the Bombay Tenancy and Agricultural Lands Act. Later, the tenant had filed an application under Section 32F read with Section 32G of the Act for purchasing the tenanted premises/disputed land.

The Authority rejected the application of the tenant The tenant filed an appeal before the Appellate Authority, which was allowed and the matter was remitted back to the Authority for disposal afresh. The Authority held that under Section 32F of the Act, right of the tenant to purchase the land was forfeited. Aggrieved, the tenant preferred an appeal before the Appellate Authority, which was allowed by it by remanding the matter back to the Authority for holding an enquiry under Section 32G to 32R of the Act for fixing the price of the land in question in accordance with law. Aggrieved, the landlord-respondent No. I filed a Revision Petition before the Maharashtra Revenue Tribunal, which was allowed by the Tribunal, against which the tenants had filed a writ petition in the High Court, which was dismissed by the impugned judgment. Hence, the present appeals.

Appellants-legal representatives of the tenant contended that the tenant had shown his willingness to purchase the land in the proceedings before the trial authority under Section 32G of the Act; and that the Tribunal as well the Authority have misconstrued the provisions ofSection 32 and 32F of the Act and therefore the order passed by the High Court and the Maharashtra Revenue Tribunal deserve to be set aside. Dismissing the appeals, the Court HELD: 1. 1. Section 29 and Section 31 of the Bombay Tenancy and Agricultural Land Act, if read together, deal with the process involved in a situation where the landlord wants to take possession of his land from the tenant and his right to terminate the tenancy for personal use. S. 32F on the contrary speaks about the right ofthe tenant to purchase the land in case the landlord is a minor. Both the parts contradict each other in the sense that if the landlord gets to exercise his right, the tenant cannot and vice versa.

Thus, it is only logical to conclude that when a landlord applies for recovery of possession under s. 29 read withs. 31 ofthe Bombay Tenancy and Agricultural Land Act, 1948, the provision of Section 32F(lA) of the said Act become inapplicable, thereby making them mutually exclusive to the extent that ifone BABU VITHU GAIKWAD (DEAD) BY LRS. v. CHINTAMAN SADASHIV 1069 is applicable, the other could not be evoked. That apart, it must be borne in { mind that an error on the part ofthe landlord does not mean that the tenants' rights under Section 32F are evoked automatically. (Para 131 (1077-E, F, G] 1. 2. In the present case, the Tribunal was of the view that the tenants had not brought anything on record that showed that they had filed any application in accordance with section 32F in order to purchase the land in question. It stated that the Appellate Authority had held them to be deemed purchasers even though the intimations that were put by the tenants were not in accordance with law.

(Para 141 (1077-H; 1078-A) ,,,~ 1. 3. Section 32G of the Act speaks about the power of the Tribunal to issue notice and determine price of land to be paid by the tenants. The tenants under this section have to show willingness to purchase the land after which the Tribunal is duty bound to give opportunity to the landlord and any other concerned party to be heard before deciding the value of the land. In the present case, the Tribunal was of the view that the second limb ofthe condition has not be satisfied, i. e. , the landlord's statements were not brought on record. This was the inconsistency in the process. Considering this, the Court is of the view that since the intimation was inconsistent with law, the Appellate Authority erred in holding the tenants as deemed purchasers, the decision > given by the Tribunal and the Single Judge Bench of the High Court on this > aspect is upheld. [Para 14) (1078-B, CJ 2.

When a landlord applies for recovery of possession under Section 29 read with Section 31 of the Act, the provision of Section 32F(IA) of the Act become inapplicable, thereby making them mutually exclusive to the extent that if one is applicable, the other could not be invoked. (Para 21) (1080-B, CJ Harshavardhan Shrinivas Potnis v. Mahadu Pundalik Gangurde, AIR (1980] Bombay 198 and Amrit Bhikaji Kale and Ors. v. Kashinath Janardhan "" Trade and Anr. , AIR (1983) SC 643, distinguished. CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2337-2338 of 2000. From the Judgment and Order dated 15. 9. 1999 and Order dated 1. 10. 1997 . ; ofthe High Court ofJudicature at Bombay in C. A. No. 8320/1997 & 139/1984. Amo! Chitale, Nikhil Shakerdande, V. D. Khanna for the Appellant. Sanjay V. Kharde, Chandan Ramamurth for the Respondents. )- The Judgment of the Court was delivered by TARUN CHATTERJEE, J, I.

These appeals are preferred against the final order 1st October, 1997 and order dated 15th September, 199. 9 passed in C. A. No. 8320of1997 by a learned Single Judge ofthe High Court ofJudicature at Bombay in Writ Petition No. 139 of 1984. By the order dated Ist October 1997, the learned Single Judge of the High Court dismissed the aforesaid writ petition in which the appellants prayed for quashing a judgment and order of Maharasthra Revenue Tribunal [in short MRT] dated 30th August, 1983 in Revision Application No. MRT P 14 of 1981 by which the Tribunal had ).. - " confinned the order passed by the Tehsildar in Tenancy Case No. 32 FG/54/ 78 dated 31st August, 1978. In the application under Article 227 of the Constitution, a prayer was also made by the appellants to restore the order passed by the Appellate Court in Tenancy Appeal No. 56 of 1979 dated 27th October, 1980. 2. The facts leading to the filing of these appeals in short may be stated as follows: 3.

Agriculture land ( for short "the aforesaid land") bearing Survey ~ ... No. 175/1 admeasuring 2 acres and 11 gunthas situated at Village Biwadi, Tai Purandhar, District Pune was owned by Sadashiv Purandhare, father of the respondent No:J Chintaman Sadashiv. Babu Vithu Gaikwad whose heirs and legal representatives are the appellants in this Court was the original tenant in'respect of the aforesaid land. A partition of the aforesaid land was affected by the deceased father of the respondents by which the disputed land was allotted to him. On the tillers day, i. e. , ! st April, 1957 the respondent No. I was minor. He attained majority on 6th October, 1960. In compliance with Section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter y called the 'Act'), the respondent No. I issued notice to Babu Vithu Gaikwad [since deceased] for tennination of his tenancy in respect of the aforesaid land.

This tennination notice was issued within one year of attaining the age of majority. The landlord-respondent No. I had failed to take out proceedings under Section 29 of the Act until he filed an application on 27th March, 1962. Since the application under Section 29 of the Act was time barred, the proceedings taken out by the landlord-respondent No. I were withdrawn on -,. • 5th September, 1964. After one year ofsuch withdrawal, Babu Vithu Gaikwad -the tenant- had filed an application under Section 32F read with Section 32G of the Act on 2nd August, 1965. In these proceedings, on 6th October, 1967, BABU VITHU GAIKWAD (DEAD) BY LRS. '· CHINTAMAN SADASHIV[TARUN CHATTERJEE, I. ] 107J a statement of the tenant was recorded that he was willing to purchase the disputed land. The additional Tehsildar rejected the application of the tenant by his order dated 28th January, 1973.

The tenant filed an appeal before the Sub Divisional Officer which was allowed and the matter was remitted back to the Additional Tehsildar for fresh disposal. After a month by his order dated 3lst August, 1978, the Additional Tehsildar held that under Section 32F the right of the tenant to purchase the aforesaid land was forfeited and, hence, directed that proceedings could be initiated under Section 32P of the Act. Aggrieved by this order, the tenant preferred an appeal before the -', Additional Collector, Pune and by an order dated 27th October, 1980 he .. , allowed the appeal and remanded the matter back to Additional Tehsildar for holding ~n enquiry under Section 32G to 32R of the Act for fixing the price for purchase in accordance with law. Being aggrieved, the landlord-respondent No.

I filed a revision petition before the MRT, Pune which was allowed by the tribunal by an order dated 30th August, 1983 and against this order the tenants had filed a writ petition in the High Court of judicature at Bombay, which was dismissed by the impugned order in respect ofwhich special leave petition was filed and leave was granted. 4. We have heard the learned counsel for the parties and examined all . ,. , the orders mentioned above and the materials on record. Before considering ~ whether the High Court was justified in confinning the order of the tribunal, it would be appropriate to refer to some of the relevant provisions of the Act which would be required for consideration in order to dispose of the appeals. "29. Procedure of taking possession:- (I) A tenan. t or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for possession to the Mamlatdar.

The application shall be niade in such fonn as'may be prescribed and within a period oftwo years from . - - '-. , (3A) Where a landlord proceeds for termination of the tenancy under sub-section (I) of Section 43-18, then, notwithstanding anything contained in this Act, the application for possession shall be made to the Collector, who shall after holding an enquiry in the prescribed manner, pass such orders thereon as he deems fit. (4) Any person taking possession of any land or dwelling house except in accordance with the provisions of sub-section (I), (2) or as the case may be, (3A), shall be liable for forfeiture of crops, if any, grown in the land in addition to payment of costs as may be directed ~ by the Mamlatdar or by the Collector and also to the penalty prescribed .. in section 81. " "31. Landlord's right to terminate tenancy for personal cultivation and nonagricultural purposes.

- (I) notwithstanding anything contained in section 14 and 30 but subject to sections 3IA to 3ID (both inclusive), a landlord (not being a landlord within the meaning ofChapter III-AA) may, after giving notice and making an application for possession as provided in sub-section (2), terminate the tenancy of any land (except a permanent tenancy), if the landlord bona fide' requires the land for r any of the following purposes:- (Q cultivating personally, or (ii) for non-agricultural purposes. (2) The notice required to be given under sub-section (I) shall be in writing, shall state the purpose for which the landlord requires the land and shall be served on the tenant on or before 31st day of .. ,.. - December 1956. Acopy ofsuch notice shall, at the same time, be sent to the Mamlatdar. An application for possession under Section 29 shall be made to the Mamlatdar on or before 31st day ofMarch 1957. BABU VITHU GA! KWAD (DEAD) BY LRS. v. CH! NTAMAN SADASH! V (TARUN CHATIERJEE, J.

) J07J (3) Where landlord is a minor, or a widow, or a person subject to ~ mental or physical disabilities 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 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 ceases to exist; iii) within one year from the date on which mental or physical disability ceases to exist; and -- # Ashoklal was a minor. 18. The said Janardhan applied to the Tribunal for purchase of the land and fixation of price ofthe same. The Tribunal went into the records and held that Tarachand was the recorded landlord and being under no disability and Janardhan being tenant of the land, by operation of law, became deemed purchaser and all subsequent proceedings were null, void and nonest. The Tribunal accordingly determined the purchase price. The High Court upheld the said decision. 19.

The Supreme Court after going through the records was of the following opinion: "Janardhan was deprived of his possession by an order which had no legal sanction. He was deprived of possession on the footing that he was a tenant ignoring and overlooking the statutory event that he had become the owner. Even when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted and there was no awakening to one's right. " .. f 20. On examining the above mentioned case, we are of the opinion that the case of Amrit Bhikaji Kale pertains to determination of the question whether Janardhan was a deemed purchaser or not. However, in the case before us, the rights of the minor are not disputed. The question of the tenants becoming a deemed purchaser does not arise in the present case as the land was transferred in the name of the minor before the tiller's day. 21.

As per our discussions above, we, therefore, hold that when a landlord applies for recovery ofpossession under Section 29 read with Section >-- 31 of the Bombay Tenancy and Agricultural Land Act, 1948, the provision of Section 32F(lA) of said Act become inapplicable, thereby making them mutually exclusive to the extent that if one is applicable, the other could not be evoked. 22. For the reasons aforesaid, the answers to the question raised as noted herein earlier are in the negative. Therefore, we dismiss the appeals upholding the decision of the High Court of Bombay and the MRT, with no orders as to costs. S. K. S. Appeals dismissed. '( ...