Bombay High Court
Shankar Yeshwant Kadam vs Khashaba Nana Nimbalkar & Another on 20 October, 1997
Equivalent citations: 1998(3)BOMCR222, 1998 A I H C 2277, (1998) 2 ALLMR 226 (BOM) (1998) 3 BOM CR 222, (1998) 3 BOM CR 222
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. This petition under Article 227 of the Constitution of India has been filed with a prayer that the orders passed by the Tenancy Aval Karkun, Satara in Tenancy Case No. 58 of 75 dated 30th November, 1977, the order in Appeal passed by the Sub-Divisional Officer, Satara Division, Satara in No. TNC 71/78 dated 27th November 1981 and the order passed in Revision No. M.R.T. NS.IX.1/82 (TEN. B. 264/(2) Pune passed by the Maharashtra Revenue Tribunal dated 13th December, 1983 be quashed and the original application for restoration of possession of the suit lands filed by the petition be granted with costs throughout.
2. The dispute in this petition relates to the following agricultural lands situate at village Kondave, Tal. Satara in Satara District, hereinafter referred to as "the suit lands."
R.S. No. Area Assessment AG.
Rs. Ps.
22/4-B 2-00
8. 25 98/4 1-21
7. 56 The petitioner claims to be the landlord of the suit lands. The respondent No. 1 is in possession thereof as a tenant. The petitioner is an ex- military personnel. The original owner of the suit land was one Yeshwant Bali Barge who was the natural father of the petitioner. The petitioner was given in adoption to one Yeshwant Kadam. By a registered deed dated 6th September, 1965 the natural father gifted the suit lands to the petitioner. Thus the petitioner claims to have become the owner of the suit lands. The petitioner was serving in the military from 1-7-1962 to 1-4-1981. On the basis of the gift deed name of the petitioner was entered in the VII/XII extract of the village records. The Agricultural Lands Tribunal initiated proceedings for fixation of the price of the suit lands under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1984, hereinafter referred to as "the Act'. The said proceedings were postponed on the ground that the petitioner was in the military since 1-7-62. This order is dated 28th December, 1965. Against the aforesaid order the respondent No. 1 filed an appeal being Tenancy Appeal No. 80 of 1966. The Deputy Collector (Appeals) who heard the matter remanded the matter back to the Tribunal by his order dated 14th October, 1966. These proceedings are said to be still pending. The petitioner gave notice on 10th March, 1975 under section 14 read with section 25 of the Act for restoration of possession of the suit lands on the ground of non-payment of rent from the year 1966-67 to 1974-75. Thereafter the petitioner filed application under section 29 of the Act for possession of the suit lands. This application was resisted by the respondent. Amongst other things, the respondent contended that the petitioner was not the landlord of the suit lands. He also challenged the legality and validity of the registered gift deed dated 6th September, 1965. He further contended that he had become deemed purchaser on 1-4-1957 and, therefore, he was not liable to pay rent for the period after 1-4-57. The Tenancy Aval Karkun framed the necessary issues. Issue No. 1 was whether there is relationship of landlord and tenant between the applicant and the opponent. Issue No. 2 was whether the applicant is entitled to demand rent of the suit lands. After taking into consideration the evidence of the parties and noticing the facts narrated above, the Tenancy Aval Karkun also noticed that the Mutation Entry No. 2783 dated 30th September, 1965 was made recording the name of the petitioner as the owner. This mutation entry was certified on 29th December, 1965 by the Certifying Officer. The tenant, however, preferred an appeal against the order of certification. In appeal, the Sub-Divisional Officer, Satara Division, Satara cancelled the mutation entry by his order dated 30th September, 1965. Thereafter it is observed that the petitioner has not produced any evidence to show that he has preferred an appeal against the order dated 30th September, 1968 cancelling his name as landlord from the suit lands. It is, therefore, held that on cancellation of the Mutation Entry No. 2783 the applicant has not got any status to remain as landlord in the suit lands. The name of the petitioner is appearing in the Record of Rights inspite of the mutation entry having been cancelled. It is held that the petitioner cannot be permitted to take benefit of his name remaining in the Record of Rights or that he is a serving member of the Armed Forces. Thus it is held that he had no locus standi to file the application. On issue No. 2 it is categorically held that the respondent is a deemed purchaser of the suit lands. It is reiterated that the name of the petitioner is wrongly entered in the Record of Rights as landlord since there is no relationship between the petitioner and the respondent of landlord and tenant. Thus it is held that the petitioner is not entitled to demand the rent of the suit lands. Consequently the application is dismissed with costs under section 14 read with section 29 of the Act, by order dated 30th November, 1977. The petitioner filed Appeal No. T.N.C. 71/78 in the Court of Sub-Divisional Officer, Satara Division, Satara. The said appeal has been dismissed on 27th November, 1981. Written arguments were filed. The Appellate Court noticed the written arguments which are a reiteration of the arguments advanced before the Court of Tenancy Aval Karkun. The sum and substance of the argument advanced by the Counsel for the respondent was that he was a tenant in the suit land on 1-4-1957 and hence became a deemed purchaser on that date. The original landlord died on 13th July, 1973. Thus the respondent became owner of the suit lands on 1-4-1957. The challenge to the validity of the gift deed is reiterated. After going through the record and considering the arguments of the parties, the appeal has been dismissed. It has been held that there is no relationship of landlord and tenant between the petitioner and the respondent. Suit land originally belonged the Yeshwant Ball Barge. The mutation entry entered in the name of the petitioner on the basis of the gift deed has been cancelled. It is also noticed that the petitioner had made an application under section 43(1-A) and the same has been rejected. The petitioner preferred an appeal which was also dismissed on 14th October, 1966. The petitioner did not carry the matter any further. In view of the fact that the respondent is a tenant in the suit lands ever before the Tillers' day it is held that he has become deemed purchaser on 1-4-1957. In view of the above it is held that since there is no relationship of landlord and tenant between the petitioner and the respondent he cannot claim benefits of section 14 read with section 25 or section 43(1 -B) of the Act. With the above observations the appeal is dismissed. The petitioner thereafter filed Revision No. M.R.T. N.S. I.X. 1/82 (T.E.N. B. 264/82) before the M.R.T. the said revision has also been dismissed by the order dated 13th December, 1983. Finding of facts recorded by the Courts below have been affirmed. It is held that since the respondent was a tenant of the suit lands on 1-4-57 he has become a deemed purchaser of the suit lands on that date. Thus the petitioner cannot claim possession of the suit lands on the ground that the respondent has filed to pay rent to him for more than 3 years. It is further held that the applicant became statutory purchaser of the suit land and, therefore, the petitioner had no right to claim any rent from the respondent thereafter. In view of the above the revision application has also been dismissed.
3. Counsel for the petitioner has submitted that even now there is a relationship of landlord and tenant between the petitioner and the respondent. It is submitted that Chapter III-AA was inserted in the Act by Maharashtra Act 39 of 1964. It is submitted that by virtue of this Chapter special provisions were made for termination of tenancy by landlord who are, or have been serving members of the Armed Forces; and for purchase of their lands by tenants. Counsel submits that all the three courts below have failed to take notice of the provisions of the Chapter III-AA of the Act. According to him, a very important change has been effected on the rights of a tenant to purchase agricultural lands of which military personnel are the landlords. In view of the provisions of section 43(1-A) the respondent cannot be deemed to have purchased the suit lands on 1-4-1957. Even if the respondent had a right to purchase the suit lands on 1-4-57 yet the purchase would not be a complete purchase till all the proceedings under section 32-G to 32-R have been completed. Admittedly, in the present case the proceedings under section 32-G of the Act are still pending as they were postponed in view of the fact that the petitioner was a military personnel. Thus it is submitted that there is no effective purchase or effective sale of the land between the petitioner and the tenant on the Tillers' day or the alternative period prescribed in that behalf until certain conditions are fulfilled. It is submitted that the right of the respondent is only an incohate right to purchase the land which can be perfected on a statement being made by him before the Tribunal that he is willing to purchase the land.
It is further submitted that even if the statement is made by the respondent, the suit land does not vest in him. It is only on the payment of the purchase price can he get the certificate of purchase from the Tribunal. Thus it is submitted that the provisions of section 32 do not vest the title of the land in the respondent. This title can only vest in the respondent subject to the provisions of sections 32-G to 32-R. In other words, it is the submission of the Counsel that till the price is finally paid and the certificate of purchase is issued the rights of the petitioner are merely suspended. That being the position it is submitted that all the courts below committed an error of jurisdiction in holding that there was no relationship of landlord and tenant between the petitioner and the respondent. To buttress his argument he has relied on provisions of sections 31(1), 31(3) and 32-F of the Act. On the basis of these provisions it is submitted that the landlords right to terminate the tenancy can be postponed. In view of these sections the right to purchase by the tenant only accrues when the disability of the landlord is removed. Thus it is submitted that the date 1 -4-57 is not a fixed date and the right to purchase can be postponed to correspond with the right of landlord to terminate the tenancy. It is submitted that by virtue of section 43(1-A) the definition of landlord as on 1-4-57 has also undergone a modification. After the amendment an Army Personnel would become a landlord on 1-4-57 so long he was in the army on the date when the amendment came into operation i.e. 20th October, 1964. In the present case the petitioner had joined the Army on 1-7-62 and, therefore, he became the landlord on 1-4-57. Even otherwise Counsel reiterates that section 32 is subject to other provisions of the Act. All tenants are not deemed purchasers. Section 32-F is an exception. Similarly Chapter Ill-A is an exception. The purpose of inserting Chapter Ill-A was to give an additional right to the military personnel which they had already enjoyed under section 32-F of the Act. On the coming into operation of the amendment the rights of a military personnel guaranteed under section 32-F have been extinguished. Section 32-F dealt with rights of disabled landlords such as minors, widows and persons subject to any mental or physical disability. The fourth category of disabled landlords was serving members of the armed forces. This category has been deleted by the amendment. Their rights have been guaranteed by provisions of sections 43(1-A)(1-B)(1-C) and (1-D) of the Act. It is, therefore, submitted that in order to effectuate the purpose of the amendment section 43(1-A) has to be interpreted to mean that the petitioner became a landlord on 1-4-57. Counsel then points out that under section 88-C of the Act certain exemptions had been made in favour of the certificated landlords. It is further submitted that 1-4-57 cannot be said to be a fixed date for other reasons also. Giving an example it is submitted that landlord could regain possession by making an application under sections 29 and 31 of the Act. Under section 31 (2) of the Act the landlord was required to give a notice of termination to the tenants before 31st December, 1956. Thereafter an application for possession under section 29 of the Act was to be made to the Mamlatdar on or before 31st March, 1957. Even if such applications had been made the same could not have been decided before 1st April, 1957. Consequently to say that all tenants who fulfilled the conditions under section 32 of the Act became deemed purchasers on 1-4-57 would lead to an anomalous situation. On provision of section 43(1-E) being pointed out by the Court the Counsel submitted that provisions of section 43(1 -E) would not affect the right of the petitioner under section 43(1-A). It is submitted that provisions of section 43(1-E) would only apply in the case of a complete and effective purchase. In the present case the proceedings under section 32-G are still pending and, therefore, section 43(1-E) would not apply. In support of these arguments, Counsel has placed strong reliance on a Division Bench judgment of this Court in the case of Bhimrao Tatoba Sawant and another v. Heramb Anant Patwardhan and others, . It is submitted that the facts of the said case are identical to the facts of the present case. The very same provisions viz. Section 43(1-E) were under the consideration of this Court, After considering all the arguments, this Court has held as follows :--
"As against this, Shri Abhyankar for Heramb argued that the interpretation sought to be put by Shri Bhonsale should not be accepted for the simple reason that such an interpretation would make the provisions of Chapter III-AA practically nugatory and that those provisions will be of no use to any landlord though he belongs to the armed forces. There appears to be much substance in the submission of Shri Abhyankar. The very purpose of introducing Chapter III-AA by the amending Act of 1964 is to give additional benefits to those landlords who are the members of the armed forces. All these provisions would be set ai naught if we accept the contention of Shri Bhonsaie that under Chapter III a tenant would be the purchaser in every case except where the purchase has become ineffective under section 32-G(3) or section 32-F. It is material to note that wherever the purchase has become ineffective under these two provisions, it is the landlord who had a first preference to get possession of the land. This right has been conferred on the landlord under section 32-R What is important is that under that section the landlord, whether he is a member of the armed forces or not, is entitled to have his first preference. It would thus mean that the provisions of Chapter III-AA could not be implemented to the benefit of the landlord belonging to the armed forces if we record a finding that prior to the introduction of Chapter III-A on the statute book the tenant should be held to have become the owner except under the two contingencies covered by section 32-G(3) and 32-F. In our opinion, the interpretation sought to be put by Shri Bhonsale on section 43(1-E) would take away all the benefits which the legislature intended to confer on the landlords who have been serving as members of the armed forces. It is material to note that section 43(1-E) uses the words 'purchase by the tenant'. It appears that the legislature has purposefully chosen not to use the words 'deemed to have been purchased by the tenant' under Chapter III. The words 'purchased by the tenant' will have to be interpreted in such a manner that the intention of the legislature to give additional benefits to the landlords belonging to the armed forces is implemented. This is permissible if there is no violence to the language used by the Legislature and the meaning of the phrase 'purchased by the tenant' can be properly understood as not to cover 'deemed to have been purchased by the tenant'.".
3. Counsel for the respondent on the other hand submitted that by virtue of section 32, the respondent became the absolute owner of the land on 1 -4-57. The title to the land which was originally vested in the father of the petitioner passed to the respondent. This title was defeasible only in the event of the respondent failing to appear or making a statement that he is not willing to purchase the land. After making the statement the purchase can be declared ineffective only in the contingencies given in section 32-G(3) and 32-F. It is submitted that the respondent got a vested interest in the suit land on 1-4-57. Counsel further submitted that mere pendency of proceedings under section 32-G do not affect the title of the respondent. No further action was required from the respondent for the passing of the complete title from the father of the petitioner, the original landlord, to the respondent. It is submitted that the title of the land passed by operation of law on 1-4-57 as the Act transferred by way of compulsory purchase all the lands belonging to the tenants in possession of the same with effect from 1-4-57 which was called 'the tillers day". It is further submitted by the Counsel that the Division Bench judgement is per incurium. It is submitted that the Division Bench judgment has not noticed two judgments of the Supreme Court which have already put the controversy at rest. Counsel has placed reliance on the judgement of the Supreme Court given in the case of Sri Ram Ram Narain Medho v. The State of Bombay, 1958 Bombay Law Reporter page 811. Thereafter Counsel has relied upon another judgment of the Supreme Court reported in the case of Amrit Bhikaji Kale and others v. Kashinath Janardhan and another, .
5. I have given my thoughtful consideration to the rival submissions made by the Counsel. A perusal of the judgement of this Court in the case of Bhimrao T. Sawant (supra) shows that therein the respondent had claimed that he is a serving member of the Armed Forces. The suit property was in the possession of the petitioners. Previously the land belonged to the joint family and the suit property came to the share of the respondent. The land was originally owned by the father of the respondent who died in 1953. The land was in possession of the petitioners. On the death of the father of the respondent his widow, respondent, and another brother became the legal heirs. The widow herself died in 1967 as a member of the joint family without claiming any share in the property that was left by the father. After her death on 28th Sept. 1967 respondent and the other brother effected a partition of the property. The suit land came to be allotted to the respondent. Chapter III-AA was introduced in the Tenancy Act in 1964. Thus the respondent made an application for restoration of possession. The Revenue Courts held that the respondent was entitled to restoration of possession. Against these orders the writ petition was filed. In these circumstances the Division Bench had decided as extracted above. A perusal of this judgement shows that the earlier two judgements of the Supreme Court were not brought to the notice of the Division Bench. In the case of Ram Ram (supra) a Constitution Bench of the Supreme Court examined the Constitutional validity of various provisions of the Act. These provisions were upheld with the following observations.
"As already stated, the impugned Act was a further measure of agrarian reform enacted with a view to further amend the 1948 Act and the object of the enactment was to bring about such distribution of the ownership and control of agricultural lands as best to subserve the common good. This object was sought to be achieved by fixing ceiling areas of lands which could be held by a person and by prescribing what was an economic holding. It sought to equitably distribute the lands between the landholders and the tenants, and except in those cases where the landholder wanted the land for cultivating the same personally for which due provision was made in the Act, transferred by way of compulsory purchase all the other lands to tenants in possession of the same with effect from April 1,1957 which was called "the Tillers day". Provision was also made for disposal of balance of lands after purchase by tenants and the basic idea underlying the provisions of the impugned Act was to prevent the concentration of agricultural lands in the hands of landholders to the common detriment. The tiller or the cultivator was brought into direct contact with the State eliminating thereby the landholders who were in the position of intermediaries. The enactment thus affected the relation between landlord and tenant, provided for the transfer and alienation of agricultural lands, aimed at land improvement and was broadly stated a legislation in regard to the rights in or over land."
"It, therefore, remains to consider whether the relevant provisions of the impugned Act were designed to bring about an extinguishment or modification of the landlord's rights in their 'estates'. These provisions are contained in sections 32 to 32-R of the impugned Act and are under the heading " Purchase of lands by Tenants": Section 32 provides that :
"On the first day of April 1957 (hereinafter referred to as " the Tillers day" every tenant shall, subject to the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all incumbrances subsisting thereon on the said day, the land held by him as tenant..."
provided certain conditions are fulfilled. Under section 32-A the tenant shall be deemed to have purchased the lands upto the ceiling area and the tenant shall not be deemed to have purchased lands held by him as such tenant if he hold lands partly as owner and partly as tenant but the area of the land held as owner is equal to or exceeds the ceiling area (section 32-B). Section 32-C empowers the tenant to chose the land to be purchased if he holds lands separately from more than one landlord and inspite of anything contained in the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (Bombay LXII of 1947) the tenant shall be deemed to have purchased even such fragments of the land held on tenancy (section 32-D). The balance of any land after the purchase by the tenant as above is to be disposed of as if it were land surrendered by the tenant (section 32-E); and the right of the tenant to purchase such land where the landlord is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces is postponed till one year after the cessation of disability. The price to be paid by the tenant is to be determined by the Tribunal as soon as may be after the Tiller's day and the Tribunal is in the first instance to record in the prescribed manner the statement of the tenant whether he is willing or is not willing to purchase the land held by him as a tenant and if the tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal is to declare by an order in writing that such tenant is not willing to purchase the land and that the purchase is ineffective (section 32-G). These provisions also apply to a sub-tenant of a permanent tenant who is deemed to have purchased the land subject to the conditions specified in sections 32 to 32-E (section 32-1). Section 32-J provides for an appeal to the State Government against the decision of the Tribunal. Section 32-K prescribes the mode of payment of price by the tenant; and the purchase price is recoverable as arrears of land revenue (section 32-L). Under section 32-M, on the deposit of the price in lump sum or of the last instalment of such price, the Tribunal is to issue a certificate of purchase to the tenant in respect of the land, which certificate of purchase shall be conclusive evidence of purchase. If a tenant fails to pay the lump sum within the period prescribed or is at any time in arrears of four instalments the purchase is to be ineffective and the land is to be at the disposal of the Collector and any amount deposited by such tenant towards the price of the land is to be refunded to him, Section 32-N gives the landlord a right to recover rent when purchase becomes ineffective as if the land had not been purchased at all. Section 32-P gives the power to the Collector to resume and dispose of land not purchased by tenants. The amount of purchase price is to be applied towards satisfaction of debts. (section 32-Q) and the purchaser is to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally. (section 32-R).
It is argued on the strength of these provisions that there is no effective purchase or effective sale of the land between the landlord and the tenant on the tiller's day or the alternative period prescribed in that behalf until certain conditions are fulfilled. To start with it is only an incohate right which is given to the tenant to purchase the land which he can perfect on a statement being made by him before the Tribunal that he is willing to purchase the land. Even if he does so, the land does not vest in him because only on the payment of the purchase price either in lump sum or by instalments can he get the certificate of purchase from the Tribunal. If he commits default in payment, the purchase is ineifective and he gets no title to the land. These provisions, it is submitted, do not vest the title to the land in the tenant at all until all those conditions are fulfilled, and if any one or more of them is not fulfilled, the purchase becomes ineffective-in fact it is no purchase at all - with the result that the title to the land which is already vested in the landlord is not at all transferred to the purchaser. If that is so, there is no compulsory sale or compulsory purchase of the land in question on the tiller's day or the alternative period of time prescribed therefor and there is no extinguishment of the rights of the landlord. His rights in the land are merely suspended and such suspension is certainly not an extinguishment of his rights therein or a modification thereof within the meaning of the expression used in Article 31-A(1)(a)."
After considering these arguments, the Supreme Court has held as follows:-
The title of the landlord to the land passes immediately to the tenant on the tiller's day and there is a completed purchase or sale thereof as between the landlord and the tenant. The tenant is no doubt given a locus penitentiate and an option of declaring whether he is or is not willing to purchase the land held by him as a tenant. If he (ails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall, by an order in writing, declare that such tenant is not willing to purchase the land and that the purchase is ineffective. It is only by such a declaration by the Tribunal that the purchase become ineffective. If no such declaration is made by the Tribunal, the purchase would stand as statutorily effected on the Tiller's day and will continue to be operative, the only obligation on the tenant then being the payment of price in the mode determined by the Tribunal. If the tenant commits default in the payment of such price either in lump or by instalments as determined by the Tribunal, section 32-M declares the purchase to be ineffective, but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. Here also the purchase continues to be effective as from the Tiller's day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and the tenant. The title to the land, which was vested originally in the landlord, passes to the tenant on the Tiller's day or the alternative period prescribed in that behalf. This title is defeasable only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The tenant gets a vested interest in the land defeasable only in either of those cases and it cannot, therefore, be said that the title of landlord to the land is suspended for any period definite or indefinite. If that is so, there is an extinguishment or in any event a modification of the landlord's right in the estate well within the meaning of those words as used in Art. 31A(1)(a)."
In the case of Amrit B. Kale (supra) the Supreme Court quoted the aforesaid extracts from Ram Ram. In paragraph 6 of the judgement before quoting the extracts from Ram Ram the Supreme Court 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."
Thereafter it is observed as follows in paragraphs 7,8,9 and 10.
"7. If Janardhan became the deemed purchaser on Tiller's day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957. This basic fact is incontrovertible.
8. It may be mentioned that section 32-F has no application to the facts of this case. Section 32-F postponed the date of compulsory purchase by the tenant where the landlord is a minor or a widow or a person subject to mental or physical disability on the tiller's day. Section 32-F has an overriding effect over section 32 as it opens with a non-obstante clause. The combined effect of sections 32-F and 32 would show that where the landlord is under no disability as envisaged by section 32-F the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in section 32-F such as a minor, a widow or a person subject to any mental or physical disability, the date of compulsory sale would be postponed as therein provided. Now, if Tarachand, the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser. This conclusion, in our opinion, is unassailable.
9. If Janardhan became the owner on April 1, 1957, all subsequent proceedings in which the Tribunal held that the date of purchase was postponed because the recorded owner Ashoklal was a minor were without jurisdiction. The Tribunal had absolutely no jurisdiction to proceed on the footing that the date of sale was postponed. It is neither an incorrect order nor an erroneous order as was sought to be made out but Tribunal lacked the jurisdiction to proceed under section 32-F were commenced. Janardhan had long since become the deemed purchaser. Therefore, all subsequent proceedings were ab initio void and without jurisdiction and the High Court was right in holding that orders passed therein were nullity.
10. The attempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of a jurisdictional fact that the recorded owner was a minor on the tillers' day. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the Tribunal tacked the jurisdiction to entertain any proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant had ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1,1957 and that legal position cannot be washed away."
Applying the ratio of the aforesaid two judgments of the Supreme Court it becomes obvious that the petitioner cannot be held to be a landlord on 1-4-57. Admittedly on that date the petitioner was not even the son of his (nature) father, he having been given in adoption much earlier later. The only other heir of the natural father was brother of the petitioner who is said to have died in the year 1946. Thus the recorded landlord on 1-4-57 was the father of the petitioner. The petitioner was nowhere in the picture as his sole claim to the land is the gift deed dated 6th September 1965. Whether or not the petitioner became a serving military personnel is, therefore, wholly irrelevant. The status of the landlord and tenant has to be seen on 1-4-57, unless it is postponed due to some disability. In the present case father of the petitioner suffered no disability. Therefore, in view of the law laid down by the Supreme Court it has to be held that the courts below have not committed any error of law, in holding that there is no relationship of landlord and tenant between the petitioner and the respondent.
6. The Supreme Court in Ram Ram's case (supra) has held that the Tenancy Act was a further measure of agrarian reform enacted with a view to further amend the Act of 1948. The object of the enactment Was to bring about such distribution of the ownership and control of the agricultural lands as best to subserve the common good. It sought to equitably distribute the land between the landlords and tenants, and excepting those cases where the landlord wanted the land for cultivating the same personally for which due provision was made in the Act, transferred by way of compulsory purchase of the other lands to tenants in possession of the same with effect from April 1, 1957 which was the Tillers day. The tiller or the cultivator was brought into direct contact with the State eliminating thereby the landlords who were in the position of intermediaries. The Supreme Court also considered the argument that the purchase was not an effective purchase or a complete purchase on 1-4-1957 unless the certificate of purchase had been issued under section 32-M and the purchase price thereafter paid by the tenant. The Supreme Court also took note of the argument that the title to the land which is already vested in the landlord is not at all transferred to the purchaser. The Supreme Court further notices the argument that the rights of the landlord are merely suspended and such suspension is certainly not an extinguishment of his rights therein nor a modification thereof. Adverting to these arguments it is held that the title of the landlord to the land passes immediately to the tenant on the Tillers' day and there is a complete purchase or sale thereof as between the landlord and the tenant. If the purchase is not declared ineffective by the Tribunal then the purchase would stand as statutorily effected on the Tillers day and will continue to be operative, the only obligation on the tenant then being the payment of price in the mode determined by the Tribunal. It is further held that even if there is a fault after the mode of payment has been fixed by the Tribunal under section 32-M, and the Tribunal declares the purchase to be ineffective, even in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. It is held that here also the purchase continues to be effective as from the Tillers day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and the tenant. The title to the land which was vested originally in the landlord passes to the tenant on the Tillers day or the alternative period prescribed in that behalf. This title is defeasable only in the event of the tenant failing to appear or making a statement that he is willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The aforesaid observations of the Supreme Court were followed in the case of Amrit B. Kale (supra), extract of which has, been reproduced above. In view of the aforesaid enunciation of the law it has to be held that the Agricultural Lands Tribunal wrongly postponed the proceedings under section 32-G of the Act by its order dated 28th December, 1965. As held by the Supreme Court, the tenant had become the owner of the suit lands on 1-4-57. Mere pendency of the proceedings under section 32-G would not affect the title of the respondent. No further action was required to be taken by the respondent for the passing of the complete title from the father of the petitioner original landlord, to the respondent. The title of the land was passed by operation of law on 1-4-57 as the Act transferred by way of compulsory purchase of all the lands belonging to the tenants in possession of the same w.e.f. 1-4-57 which was called the Tillers day. It is the admitted case of the parties that the father of the petitioner did not suffer from any disability on 1-4-57. It is also on the record that the father of the petitioner died on 13th July, 1973. The petitioner was given in adoption to one Yeshwant Kadam. The only other natural son of the original landlord died in 1946. The petitioner joined the Military on 1st July, 1962. The land was gifted to the petitioner by his natural father by a registered gift deed dated 6th September, 1965. Chapter lll-A of the Act was inserted in the Act in 1964. Taking advantage of the provisions of the said Act the proceedings under section 32-G were got postponed on 28th December, 1965. The respondents even challenged the postponement of the proceedings in Tenancy Appeal No. 80/66. The matter was remanded back to the Tribunal by order dated 14th October, 1966. These proceedings are said to be still pending. The petitioner remained in the army till 1st April, 1981. Whilst he was still in the Army on 10th March, 1975 he made an application for restoration of possession of the suit lands under section 14 read with section 25 of the Act on the ground of nonpayment of rent from the year 1966-67 to 1974-75. Thereafter the petitioner filed application under section 29 of the Act for possession. The facts narrated above clearly indicate that the so called registered gift deed dated 6th September, 1965 is an attempt to play a fraud on statute. If the desire of the original landlord was to gift the land to the petitioner it could well have been done before 1-4-57. Having lost the title to the land on 1-4-57, a belated effort has been made to commit a fraud on statute and to claim that the title of the land has not passed to the respondent on 1-4-57. In my view, all the courts have correctly come to the conclusion that there was no relationship of landlord and tenant between the petitioner and the respondent. It may also be noticed that the petitioner had made an application under section 43(1-A) of the act. The said application has been dismissed. Even the Mutation Entry No. 2783 dated 30th September, 1965 wherein the name of the petitioner was recorded as the owner and subsequently certified on 29th December, 1965 has been cancelled. This order of cancellation was passed in appeal preferred by the respondent by the Sub-Divisional Officer, Satara Division, Satara on 30th September, 1968. Inspite of the cancellation of the mutation entry the name of the petitioner wrongly appeared in the Record of Rights. This wrong entry cannot create any rights in favour of the petitioner. With regard to the submissions of the Counsel for the petitioner on the basis of the Division Bench judgment of this Court it has to be noticed that therein the original landlord Anant died in 1953 i.e. before the Hindu Succession Act came into force leaving behind his widow and two sons. Widow died in 1967 as a member of the joint family without claiming any share in the property that was left by Anant. It was only after her death that the two sons Heramb and Prabhakar effected a partition of the properly that was left by Anant. In that partition the suit land was allotted to Heramb. Since Heramb was a serving member of the Armed Forces he claimed protection of Chapter III-AA which was introduced in the Act by the Amending Act of 1964. Thus the facts of that case are not para materia with the present case. In the present case the title had passed to the respondents on 1-4-57 as no disability had attached to the landlords. In the Division Bench case the landlords all suffered from a disability. Thus the case fell under section 32-F and not under section 32 as in the present case. Mr. Gole has relied upon certain observations of the High Court in para 10. In view of the law laid down by the Supreme Court it cannot be held that there is no complete purchase on 1-4-57 if the landlord and tenant did not suffer from any disability. Even the Division Bench recognises that the vested rights flowing from the purchase of the lands by tenants under Chapter III should not be disturbed. It may be noted that Chapter 111 commences from section 31 and concludes with section 43. Therefore, even according to the Division Bench, the rights which have been crystalised by purchase under Chapter III then army personnel will not be able to take benefit of Chapter III-AA of the Act. In the present case the purchase was completed by the tenant on 1-4-57 as no disability attached either to the landlord or to the tenant. Mere pendency of proceedings under section 32-G would not affect the title of the owner i.e. the tenant after 1-4-57.
7. At this stage Mr. Gote submits on the basis of a Reference Order of this Court delivered in Writ Petition No. 3389 of 1991 that the matter ought to be referred to a larger Bench. The opening paragraph of the Reference Order is as follows:
"The question of law that arises in this case is whether vesting of the land under section 32 of the Bombay Tenancy and Agricultural Land Act, 1948 ("the Act") on the Tillers day i.e. 1st day of April 1957 is postponed in the case of lands owned by persons claiming exemption under section 88- C of the Act till the date of application. In other words, the controversy is whether only persons who are eligible to apply for exemption under section 88-C of the Act on the 1st day of April 1957 are entitled to the benefit of exemption of persons, though not eligible on that day but eligible on the date of application, are also entitled to get the benefit of exemption."
The aforesaid question, in my view, has no relevance to the controversy which this Court is called upon to adjudicate in the present case. Therefore, I am unable to accede to this request of the Counsel for the petitioner.
8. In view of the above I find no merit in the writ petition and the same is hereby dismissed with no order as to costs. Certified copy expedited.
9. Petition dismissed.