PATEL SURESHBHAI JASHBHAI v. PATEL SATABHAI MATHURBHAI

Citation: [1983] 2 S.C.R. 992

Court: Supreme Court of India

Bench: D.A. DESAI, O. CHINNAPPA REDDY

Case summary

32-G, in a subsequent proceeding u/s 32 PP it is not open to the landlord to challenge that such a person was not tenant. This appeal was dismissed by the Deputy Collector concurring with the findings 9f the Tribunal.

Judgment text

PATEL SURESHBHAI JASHBHAI v. PATEL SATABHAI MATHURBHAI April 28, 1983 [D. A, DESAI AND 0. CHINNAPPA REDDY, JJ. ) Bombay Tenancy and Agricultural Lands Act, 1948-ss. 32, 32 G, 32 PP- Scope of-Tenant-Deemed Purchaser ofland-Failed to be present-Sale declared ineffective-Application under section 32 PP for determiniJtion ofprice-Landlord entitled to contend applicant not a tenant-Not precluded by . res-judicata. lly the operation of s. 32 of the Bombay Tenancy and Agricultural Lands Act 1948 the respondent who was recorded as a tenant on the tillers' day i. e. ! st April, 1957 was deemed to have purchased the land from the appe"Uant-landlord subject to other provisions of the Act. The respondent having refused to accept notice u/s 32G for determining the price of the land and failing to appear, the Tribunal declared the sale ineffective. Subsequently the respondent made an application under s.

32 PP that afforded a fresh opportunity to a tenant who had failed to aμpear before the Tribunal as a result of which the sale was held ine~ectivc, requesting tli. e Tribunal t~ deter~ mine purchase price of the land. The Tribunal held that the responc:ent was y not a. tenant of the land and was not entitled to be declared a deemed pur.. chaser and accordingly it is not necessary to determine the price. The Deputy Collector dismissed the appeal preferred by the respondent. The Revenue Tribunal in a revision petition held that once the notice was issued to a person who is shown to have purchased the land ufs 32 and if the sale is held ineffec.. tive because of his absence in the proceeding• under s. 32G, in a subsequent proceeding u/s 32 PP it is not open to the lannlord to challenge that such a person was not tenant.

A petition under Article 227 of the Con-stitution moved by the appellant-landlord was dismissed in li"dne by the High Court, Dismissing the appeal, HELD : The yiew of the Revenue Tribunal is not correct. Section 32 PP confers a right upon a person claiming to be a tenant to make an appli· cation for determining the price and the pre-condition is that he failed to appear before the Tribunal in a prcceeding u/s 320. In such a situation,. the landlord is a necessary party. The landlord cs. n and would be entitled to contend that the person claiming to be a tenant and making an appli~ation u/s 32 pp was not a tenant on April I, 1957. Undoubtedly only that person is entitled to make an application u/s 32 PP who having failed to appear before the Tribunal in a proceeding ufs 320, the statutory sale was declared ineffective but on that account such person making an application under s.

32 PP must be accepted as tenant without further enquiry and without permitting \he landlord to challenge the status of the applicant is not warranted b¥ the l'. S. JASHBHAI '· P. s. MATHUJl. BHA!. (Desai, J. ) . 993 language of s:32 Pf. , The Revenue: Trjbuna)'s view. that·. UI)less the. landlord, . 1-... challenged the order u/s 320 declaring lhe sale having, become inetrectjve Oil _ . the footing that a persoil to whom notiCe was sent was'. a tenant on Aprjl t. - 1957 and bis failure lo appear without anything more would clothe him with the status of a tenant overlooks the possibility or a pCrson tO whom noticq is served not appearing because be bad nothing to do with 1he Ian ---. ·the. sta~ ifl the subsequrnt enquiry. The1e is only ope situatipn whicfl may. preclude the enquiry in that if on receipt of notice; the tenant di4 μot appear . ' and the landlord appeared and unequivocally admitted that. the defaulting · p.

erson was a tenant on ·the relevant date 'and on· his failure to appeiir the ··sale should be declared ineffective; the landlord ill. sUbsequent ,prOceedlng· . under s, 32 PP would be estopped from challenging the status of the applicant :tenant, (998 A-q . • ·· CML APPELLATE Ju&1so1cnoN : Civil Appeal . No. 1583 of 1970. , ' .. , ' ' ' -.. ,;' Appeal by special leave from the Judgment and Ordet dated the 22-12-1969 of the Gujarat High Court in S. C. A. No. 1630 of 1969. . - V. A. Bobde and A. G. Ratnaparkhi for the Appellant. ~- B. Datar and Ms. Madhq Moolchandani for the Respondent, The Judgment of the Court was delivered by. - DESAI J, ·Appellant Sureshbhai is the ! )wner of Ian . s. JASJtllltAI v. 1>. s. l. rA'tirullnHAl (besal, i. ) 9! tt confers a tight upon a person claiming to be a tenant and the precondition is that he having failed to appear before the Tribunal in a proceeding u/s 320, can make an application for detennining the price.

In such a situation, the la:lldlord is a necessary party, The landlord can and would be entitled to contend that the person claililing. to be a tenant and making an application u/s 32PP was not a tenant on April I, 1957. It is difficult to subscribe to the interpretation of sec. 32PP adopted by the Tribunal. Undoubtedly only that person is entitled to make an application u/s 32PP who having failed to appear before the Tribunal in a proceeding ·u;s 320, the statutory saie was declared ineffective but on that account such peuon making an application under sec. 32PP must be ! lccepted as tenlmt without further enquiry and without permitting the landlord to challange the status of the applicant is not warranted by the language of sec. 32PP.

It is undoubtedly true tha't an application u/s 32PP can be made where the purchase of the land by the tenant has been declared ineffective u/s 320(3) by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land. But it should not be overlooked that where a notice was sent by the Tribunal u/s 32G to the person to whom the Tribunal primafacie believed to be a tenant and if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective, the application u/s 32 PP would not preclude the landlord frotn con· testing the petition by showing that the applicant was not a tenant on 1. 4. 51.

In any proceeding u/s 320 and 32PP the most important issue to be determined is whether the person claiming to be a tenant was a tenant on April I, 1957 and an additional issue will have to be determined in an application u/s 32PP whether to such a person notice had been issued u/s 320 and on his failure to appear the sale became ineffective. the Revenue Tribunal appears to be of . the view that unless the landlord challenged the order u/s 320 declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April I, 1957 and is failure to appear without anything more would clothe him with the status of a tenant. This approach overlooks the possibility of a person to whom notice-is served, not appearing because he had nothing to do with the land. In such a situation an unadjudicated inferential determination · ofstatus-cannot preclude an inquiry into the status which is-a &ine . . ' . /.

' qua non for claiming the right in a subsequent proceeding between . A the parties. Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general principle of res judicatil or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry. There is only one situation which may preclude the enquiry in that if on receipt of notice the tenant did not appear and the landlord appeared and unequivo_cally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under sec. 32 pp would be estopped from challenging the status of the applicant tenant. Such is not the case. Otherwise on a challenge by the landlord in a pro- _ceeding under sec.

32 PP the Tribunal have to determine the jurisdictional facts that (i) the applicant. was a tenant on April 1, 1957 and (ii) that the sale was declared ineffective under sec. 35G. Therefore, the view of the Tribunal that in a proceeding u/s 32PP, the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct. Mr. Bobde contended that once the view of the Tribunal is not y in consonance with law the only course open to us is to remit the matter to the Tribunal. We are not inclined to accept the submission 'E for the obvious reason that there is material on record that the respondent was a tenant on the relevant date. Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years.

Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status. The landlord did not take any step under sec. 15 after the sale was declared ineffective. Nathabhai Zaverbhai who according to the landlord was the only tenant ofland was not examined by the landlord. The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined. · This is the only point involved in this appeal. As we find no merit in it, the appeal fails '. Ind is_ dis_missed with costs. • H. S. K. Appeal <fismissed.