Bombay High Court
Raghunath Dattatraya Vadekar vs Smt. Ratnabai Jinappa Upadhye And Ors. on 5 May, 2000
Equivalent citations: AIR2001BOM1, 2001(1)MHLJ151, AIR 2001 BOMBAY 1, 2001 A I H C 1, (2001) 1 ALLMR 85 (BOM), (2001) 1 MAH LJ 151, (2001) 1 MAHLR 392, (2001) 6 BOM CR 318, 2000 (3) BOM LR 318, 2000 BOM LR 3 318
Bench: Ranjana Desai, V.C. Daga
JUDGMENT N.J. Pandya, J.
1. The learned single Judge while dealing with these two matters had occasion to notice the effect of Section 32(1A)(b) not considered at all by the Division Bench of this Court when they decided the matter that is reported in (1987) 89 Bom LR 4. The Division Bench was considering the effect of newly introduced Sub-section (1B) in Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This was introduced by an amending Act No. 49 of 1969.
2. As rightly held by the learned single Judge in his order dated 2-2-1-989, making the reference, in the case reported in the said Bombay Law Reporter in the matter between Bajirao Maruti Dhumal v. Shankar Yalleppa Mane, the word possession as used in the aforesaid newly introduced Sub-section (1B) was interpreted to include a constructive possession of the landlord. This was done on the basis that as per the general law of property, owner of a property is taken to be in possession for all times to come till his ownership is extinguished. As a direct corollary thereto, it is obvious that even though actual physical possession is of a third party like a tenant or lessee, the landlord will have a constructive possession through the said third party.
3. The new Sub-section (1B) reads as under :
"Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in Section 29, is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July, 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said Section 29, either suo motu or on the application of the tenant, hold an enquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and Sections 32A to 32R (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him.
Provided that, the tenant shall be entitled to restoration of the land under this subsection only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area".
4. The provisions of Section 32(1A) referred to by the learned Judge will also have to be reproduced to understand the controversy and therefore it is reproduced hereinunder.
"(1A)(a) Where a tenant, on account of his eviction from the land by the landlord, before the 1st day of April, 1957 is not in possession of the land on the said date but has made or makes an application for possession of the land under Sub-section (1) of Section 29 within the period specified in that sub-section, then if the application is allowed by the Mamlatdar, or as the case may be, in appeal by the Collector or in revision by the Maharashtra Revenue Tribunal, he shall be deemed to have purchased the land on the date on which the final order allowing the application is passed.
(b) Where such tenant has not made an application for possession within the period specified in Sub-section (1) of Section 29 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of the final rejection of the application, such other person shall be deemed to have purchased the land on the date of the expiry of the said period or as the case may be, on the date of the final rejection of the application."
5. It being a matter under the said Tenancy Act one has to remember the appointed day which is 15-6-1956 and the tiller a day which is 1-4-1957.
6. The matter was placed before the Division Bench of Dharmadhikari and Chaudhari, JJ. who were in agreement with the learned referring single Judge but felt that if at all they have to disagree with the view of the Division Bench in the said Bajirao Dhumal's case (1987 (89) Bom LR 4), the matter should be placed before a larger Bench. That is how the matter has come before us.
7. The facts have been very elaborately stated by the learned single Judge by reference order dated 2-2-1989. The person who was seeking benefit under newly introduced Sub-section (1B) was not in possession since the year 1956. The exact date of his dispossession has not come on record. It is also on record that the original landlady had inducted respondent No. 4 of the petition as a tenant but for reasons which are not clear, admittedly proceedings under Section 32(G) of the Bombay Tenancy and Agricultural Lands Act were not initiated in respect of the newly inducted tenant, the respondent No. 4.
8. In this background, if one turns to Section 32(1B) quoted above, it becomes clear that if a tenant has been evicted before 1st day April, 1957, unless he makes an application under Sub-section (1B) of Section 29 of the said Act, he cannot get the benefit of right conferred on tenant by virtue of his being a deemed purchaser. As per Clause (b), if no application is made and if made is rejected, the person who is there as tenant he shall be deemed to have purchased the land as set out in the said Clause (b).
9. Obviously then the right conferred by the newly introduced Sub-section 32(1B) will have to be read as the one which is not affected by Sub-section (1AB). The decision of the Division Bench in Dhumal's case (1987 (89) Bom LR 4) based only on the concept of constructive possession, obviously cannot be said to be a good law. Both the statutory provisions have to be read together and on harmonious construction has to be held that a person who has been inducted in the land, shall be treated as a deemed purchaser unless proceedings under Section 29 have been successfully taken by the ousted original tenant. If he has not taken the proceedings or if taken, he has failed obviously only on the strength of the newly introduced Section 32(1B) and on the face of constructive possession, the ousted tenant cannot claim any benefit.
8. The reference is answered accordingly. The petitions are dismissed also on the same line.