Bombay High Court
Shankar Savanta Bandagar vs Sonabai Rau Kamalakar And Ors. on 3 August, 1979
JUDGMENT M.N. Chandurkar, J.
1. This petition which relates to the tenancy rights of a tenant of sanadi imam land has been referred to the Division Bench because the learned Single Judge had doubted the correctness of the view taken by V.S. Desai, J. in Shripati Mane v. Shamrao Jagdale, 18 Tenancy Law Reporter, page 137. Really speaking the controversy which is raised in this petition is concluded by the decision of the Supreme Court in Civil Appeal No. 475 of 1973 Pandurang Dnyanoba Lad v. Dada Rama Mehte, decided on 24th, February, 1976 reported in 25 Tenancy Law Reporter, page 2. It does not appear that this decision of the Supreme Court was brought to the notice of the learned Single Judge.
2. The petitioner admittedly hold Survey No. 274 (6 acres 35 gunthas) of village Pattan-Kudoli in Hatkanangale taluka of Kolhapur district as sanadi inam land. The field was jointly cultivated by two tenants Sitaram and Gopala, who are now represented by their heirs who are respondents in this petition. Admittedly both the tenants were cultivating the land prior to 1st April, 1957. According to the petitioner, Sitaram had surrendered his rights prior to 1st April, 1957. There is some dispute as to the data on which the tenancy rights were surrendered, but it is not in dispute that the surrender was verified and was found to be voluntary by the Tahsildar by an order dated 7th August, 1958. The petitioner claims to be in possession of half share of the land surrendered by Sitaram. According to the petitioner, proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act") were taken from time to time for determination of purchase price for the purposes of transferring statutory ownership to the tenants, but those proceedings were dropped. In the meantime, the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (hereinafter referred to as "the Abolition Act") had come into force. Under section 4 of the Abolition Act the inam granted to the petitioner came to be abolished and the land was regranted to him under section 7 of the Abolition Act..
3. The original tenant Sitaram then applied for determination of the purchase price under section 32-G of the Tenancy Act. The Agricultural Lands Tribunal by an order dated 3rd January, 1972 held that Sitaram having already given up his tenancy rights, no order under section 32-G could be passed in his favour in respect of the portion of the land of which he was earlier a tenant. The other tenant Gopala was held entitled to purchase the land and by an order dated 3rd January, 1972 the tiller's day was held to be 23rd July 1971, i.e., the day on which the regrant was made in favour of the petitioner. The purchase price was also determined.
4. Two appeals ware filed against the order of the Lands Tribunal. One was filed by the petitioner challenging the determination of purchase price in so far as Gopala was concerned and Sitaram's heir, the present respondent No. 1, also filed an appeal. Both these appeals came to be decided by a common order. The petitioner's appeal came to be dismissed and the appeal filed by respondent No. 1 as the heir of Sitaram came to be allowed and the matter was remanded by the Special Deputy Collector to the Agricultural Lands Tribunal for a fresh enquiry and decision in respect of half the land.
5. The petitioner filed a revision application challenging both the adverse orders against him. The revision application was dismissed by the Tribunal holding that the tiller's day was not postponed merely because the land was inam land. The Tribunal also held that as the surrender application was given after the tiller's day, the same could not be held to be a valid surrender. So far as Gopala was concerned, the price was held to have been properly fixed. This order of the Tribunal is new challenged by the petitioner in this petition.
6. Now, when the matter came before the leaned Single Judge, it appears that it was contended on behalf of the petitioner that in the case of land which was the subject of a sanadi inam, the statutory date of ownership, what was generally known as the tiller's day, would be postponed and that it would be only from the day on which the land was regranted to the landlord that the tenant would claim statutory ownership. The argument was that the tiller's day in the instant case would be 23rd July, 1971 when the regrant was made in favour of the petitioner. V.S. Desai J. had taken the view that proceeding under section 32-G could be taken even in respect of sanadi inam land and that sanadi inam land was not exempted from the provisions of the Tenancy Act as section 88(1)(a) of the Tenancy Act was not attracted in such case. The learned Single Judge took the view that the question which would be required to be decided is whether the tiller's day, i.e., 1st April, 1957 is available for working out the rights of the statutory purchase or whether the date of regrant is the material date for the purpose of finding out the entitlement of the tenant and since the judgment of V.S. Desai J. does not refer to the provisions of section 7 of the Abolition Act, the question being of vital importance, it was required to be decided by a Division Bench.
7. The learned Counsel for the petitioner before us has contended that in so far as the claim of the heirs of Sitaram to statutory ownership was concerned, Sitaram was admittedly not in possession on 23rd July, 1971 and since on that day no rights of tenancy vested either in Sitaram or in his heirs, the benefits of section 32-G of the Tenancy Act could not be claimed by either of them. With regard to the decision of the Tribunal in so far as it holds that Gopala was entitled to statutory ownership, hardly anything could be urged on behalf of the petitioner. The only question which, therefore, has to be decided is whether the rights under the Tenancy Act could be availed of by the tenant during the time when the land was held by the petitioner as the sanadi inam land or whether the rights under the Tenancy Act could be claimed for the first time only after 23rd July 1971 when the land was regranted to the petitioner.
8. Now, one thing which must be pointed out at the outset is that the date of statutory ownership or what is described in section 32 as the tiller's day is made determinable by the statute itself. Therefore, unless there is some provision in the Act which positively provides for any postponement of that date in the case of lands which were sanadi inam lands and ware resumed by the State Government consequent upon the Abolition Act, it will not be permissible for the Court to fix the date of regrant as the date on which the statutory rights of ownership vest in the tenant. It is obvious that the argument advanced on behalf of the petitioner is intended to establish that prior to 23rd July, 1971 the provisions of the Act did not apply to sanadi inam land and since they became applicable only on 23rd July, 1971, the lease in favour of Sitaram being after 1st April, 1957, in this case the provisions of section 32-O would be applicable and since Sitaram has not given any intimation in order to exercise a right to purchase, the purchase should be deemed to have become ineffective.
9. In our view, this contention is based on a complete misconception of the provisions of the Tenancy Act. The foundation of the argument on behalf of the petitioner is section 88(1)(a) of the Tenancy Act which makes inapplicable the provisions of the Tenancy Act to certain kind of lands section 88(1)(a) provides that save as otherwise provided in sub-section (2) nothing in the foregoing provisions of the Tenancy Act shall apply to lands belonging to, or held on lease from, the Government. We are not concerned with sub-section (2) of section 88(1)(a). Relying on these provisions an argument is advanced that though the land is granted as the sanadi inam to the petitioner, the land belonged to the Government and, therefore, the provisions of the Tenancy Act could not apply till the date on which the Abolition Act came into force because prior to that, land belonged to the Government According to the petitioner, even thereafter till 23rd July, 1971 when the order of regrant was made, the land continued to belong to the Government. Now if one looks at the scheme of the Tenancy Act, it is clear that the legislature did not intend that inam land shall be excluded from the operation of the provisions of the Tenancy Act. The Explanation to section 88 is of some importance in this context. The Explanation reads as follows :
"For the purposes of Clause (a) of sub-section (1) of this section land held as inam or watan for service useful to Government and assigned as remuneration to the person actually performing such service for the time being under section 23 of the Bombay Hereditary Offices Act, 1874, or any other law for the time being in force shall be deemed to be land belonging to Government."
The effect of this Explanation is that only land held as inam or watan for service useful to Government and assigned as remuneration under any law is alone treated as land belonging to the Government. It is important to note that a fiction has been introduced in this Explanation. But for that fiction even such land which was given as watan for service useful to Government would not have fallen within the provisions of section 88(1)(a). This is a clear indication that the lands which were granted as sanadi inam lands were not treated as lands belonging to the Government. It is well-known that such lands are treated as alienated lands and for all intents and purposes the inamdar or the holder of the sanadi inam was the owner of the land.
10. What was done by the Abolition Act was that the inam was abolished. The Abolition Act refer to the alienated land and the holder of the alienated land is referred to as the alience and the alience also includes the co-sharer of the holder recognised for the purposes of the Abolition Act. Now when we go to the provisions of the Tenancy Act, it is not in dispute that section 32 which creates a statutory right of ownership on the tiller's day is followed by certain other provisions including section 32-G which deals with determination of purchase price. We have not been shown any provision which created any bar against the holder of the inam from creating a tenancy in respect of the inam land. On the other hand, the position that such land could be transferred is recognised by the Abolition Act in section 9 which provides that in the case of an alienated land to which the provisions of sections 6, 7 or 8 do not apply, if an alienee is in possession or if the land in possession of the person holding through or from the alienee, then such alienee shall be primarily liable to the State Government for payment of land revenue. Section 7 of the Abolition Act merely creates a prior right in respect of lands held under watan in favour of the holder of watan. The only effect of section 7 is that the alienated land which was inam land is now granted to the holder of the inam in occupancy rights. But he does not have to pay the occupancy price in certain cases where the commutation settlement permits the transfer of the land appertaining to such watan and where such is the kind of land, the land is granted without payment of any occupancy price. Therefore, even in respect of the land which was sanadi inam land, tenancy rights could be created and if section 88(1)(a) of the Tenancy Act did not apply in the case of such land, it is apparent that the provisions of the Tenancy Act could be availed of by the tenant in respect of such land. The same is the indication in sub-section (6) of section 32-G. It provides that if any land which, by or under the provisions of any of the Land Tenures Abolition Act referred to in Schedule III of the Act, is regranted to the holder thereof on condition that it was not transferable, such condition would not be deemed to affect the rights of any person holding land on lease created before the regrant and such person shall, as a tenant, be deemed to have purchased the land under this section as if the condition that it was not transferable was not the condition of regrant. The Abolition Act is to be found at serial No. 21 in Schedule III. The effect of sub-section (6) of section 32-G is that when under the Abolition Act the land is regranted to the holder then even though the regrant is subject to the condition that the land is not transferable, that condition does not affect the right of a statutory purchase of the tenant of that land and notwithstanding such condition the tenant would be deemed to have purchased the land under section 32-G. Section 32-G, therefore, in terms creates statutory ownership in respect of sanadi inam land which is regranted. Section 32-G refers to purchase of land "under this section". Section 32-G deals with tenants who are deemed to have purchase the lands. The tiller's day under section 32 is 1st April, 1957 and, therefore, even in respect of sanadi inam land regranted to the holder, the Tiller's day will be only 1st April, 1957 and no other. In the face of the provisions of sub-section (6) which in terms creates a right of statutory ownership with reference to section 32, it is difficult to hold that merely because land is regranted later, the right of statutory ownership is also postponed, indeed, the very intention of sub-section (6) is to make it clear that notwithstanding the regrant the ownership still vests in the tenant with effect from 1st April, 1957. Thus the rights created in favour of the tenant even during the time when the inam was subsisting have been saved and it is obvious to us that there is no scope for any argument that there is any postponement of any statutory ownership on the ground that the land was regranted after 1st April, 1957. We, therefore, respectfully concur with the view taken by V.S. Desai, J.
11. We may also refer to the provisions of section 28 of the Abolition Act which provide as follows :
"Nothing in this Act shall in any way be deemed to affect the application of any of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, to any alienated land or the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are not in any way inconsistent with the express provisions of this Act."
Once again section 28 refers to rights and obligations of a landlord and his tenants in respect of an alienated land. Alienated land, as already pointed out by us, is the land which is granted as inam. The object of the Legislature in enacting section 28 was clearly to safeguard the statutory rights and obligations of a landlord and his tenants in respect of inam land.
12. In Yeshwant Maruti v. Ganpati, reported in 18 Tenancy Law Reporter, para 135, the contention of the landlord was that proceedings under section 32-G were incompetent on 11th November, 1961 because on that day no regrant of the land had been made in favour of the landlord. The learned Judge after referring to section 88(1)(a) and the Explanation of the Tenancy Act and section 28 of the Abolition Act pointed out that the Abolition Act was intended only to abolish the special tenures in respect of certain lands and bring all the lands on the footing of ordinary ryotwari and it was not intended to interfere with the operation of the Tenancy Act in respect of the said lands. Consequently the learned Judge held that the proceedings under section 32-G were not without jurisdiction.
13. The position is further clarified in the decision of the Supreme Court cited supra in Pandurang Dnyanoba Lad's case. In that case the appellant before the Supreme Court was a landlord and an argument similar to the one which is advanced by Mr. Sakhare before us was made that with the abolition of inam effected under the Abolition Act, the old relationship of landlord and tenant had come to an end and that with the regrant of occupancy rights in favour of the landlord a new relationship of landlord and tenant came into existence between them and since the tenants did not exercise their right to purchase the land within the period prescribed by section 32-O of the Tenancy Act, they had forfeited that right. The Supreme Court held that the relationship between the appellant and the respondents did not come to an end at the introduction of the Abolition Act, nor was there any legal justification for the theory that on the caser of that relationship a new relationship of landlord and tenant came into existence between the parties so as to attract the application of section 32-O. It was pointed out that as a result of section 4 of the Abolition Act only the rights of inamdar stood determined and a tenancy created by an inamdar was not a right in respect of alienation nor an incident of the alienation and the rights of the tenants continued to exist and were expressly protected under section 28 of the Abolition Act. Referring to the inclusion of the Abolition Act in Schedule III to the Tenancy Act, the Supreme Court observed as follows after making a reference to the provisions of section 32-G(6) of the Tenancy Act.
"Thus even if the land after the abolition of the inam effected under the Abolition Act, was regranted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondents to purchase the land under section 32-G of the Tenancy Act. In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is expected from the restraint of non-transferability."
14. In this view of the matter, it is difficult for us to entertain any challenge on behalf of the petitioner-landlord that Sitaram or his heirs not being in possession on 23rd July, 1971, proceedings under section 32-G of the Tenancy Act could not be taken. The relevant date in the instant case would be 1st April, 1957 and it is with reference to that date that the revenue authorities will have to determine whether the right of statutory ownership has been vested in Sitaram's or his heirs. The order of the Special Deputy Collector shows that he has remanded the matter for a fresh enquiry and decision so far as Sitaram's half share in the suit land is concerned. It will be open to the petitioner to contend before the Lands Tribunal that on grounds other than the one decided in this petition no statutory right of ownership vested either in Sitaram or his heirs under section 32-G and that, therefore, the Lands Tribunal had no jurisdiction to proceed with the proceedings under section 32-G of the Tenancy Act.
15. The petition must, therefore, fail and is dismissed. In the circumstances of the case, there will be no order as to costs.