Bombay High Court
Arvind Deochand Mehta vs Genu Tukaram Bhoir on 12 November, 2008
Equivalent citations: AIR 2009 (NOC) 2922 (BOM)
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1229 OF 1990
1. Arvind Deochand Mehta
2. Vijay Deochand Mehta
3. Kailas Deochand Mehta
4. Vilas Deochand Mehta
5. Smt. Tarabai Deochand Mehta
All r/o Rajur, Tq. Akole,
District Ahmednagar. PETITIONERS
VERSUS
1. Genu Tukaram Bhoir,
Died by his L.Rs.
1a. Smt. Sonabai Genu Bhoir
1b.
1c.
Dinkar Genu Bhoir
Dnyaneshwar Genu Bhoir
R/o Ammunition Factory,
Khadki, Pune.
1d. Pandhari Genu Bhoir
1e. Prakash Genu Bhoir
1f. Balu Genu Bhoir
Nos. 1a, 1b, & 1d to 1f
R/o Rajur, Tq. Akole,
Dist. Ahmednagar.
2. Namdeo Dhavala Rewate
Died by his L.Rs.
2a. Deepak Namdeo Rewate
2b. Kailash Namdeo Rewate
2c. Vilas Namdeo Rewate
2d. Sou. Meena Rohidas Kachre
2e. Smt. Surekha Namdeo Rewate,
All r/o Ambar Apartments,
Near Labour Court, H.No. 22,
1st floor, Savedi, Dist.
Ahmednagar.
3. Kisan Dhavala Rewate,
R/o Rajur, Tq. Akole,
Dist. Ahmednagar. RESPONDENTS
.....
Mr. S.K. Shinde, advocate for the petitioners. Mr. K.D. Bade-Patil, advocate for respondents.
.....
[CORAM: V.R. KINGAONKAR, J.] DATE : 12th November, 2008 ::: Downloaded on - 09/06/2013 14:03:32 ::: (2)
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ORAL JUDGEMENT :
1. By this petition, petitioners impugn judgement rendered by learned Member of Maharashtra Revenue Tribunal, in proceedings No. MRT/AH/VI-9/85 (TNC.B.182/85), dated 28th January, 1988 and also in review application which came to be dismissed.
2. The fields in question were owned by Deochand Mehta, predecessor of the present petitioners and during their minority, were in the hands of their mother - Smt. ig Tarabai Mehta. Father of original respondents No. 2 and 3, namely, Dhavala Uma Rewate was in possession of the said fields as tenant. The petitioners asserted that Deochand Mehta died prior to 1st April, 1957 leaving behind them as minors as on 1st April, 1957 i.e. the tiller's day and, therefore, the tenant could not have acquired any right to ownership under section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "BT&AL Act").
They asserted that it was necessary for the tenant to comply with provisions of Section 32F (1A) of the BT&AL Act since they were minors. The contention of the petitioners was negatived by this Court in context of Spl.C.A. No. 1348/1972. This Court held that the Agricultural Lands Tribunal will deal with proceedings under section 32G after ascertaining the date of the ::: Downloaded on - 09/06/2013 14:03:32 ::: (3) order rendered by the Maharashtra Revenue Tribunal in earlier proceedings for resumption of the fields in dispute. This direction was issued by this Court (Chandurkar, J.) on 15th June, 1976. A review application was filed against such a direction which came to be dismissed.
3. It would appear that inspite of such directions, the proceedings under section 32G were not undertaken by the Agricultural Lands Tribunal, nor the tenant - Dhavala Uma Rewate had taken further action in the matter. In the meanwhile, the petitioners submitted an application to the Additional Tahsildar, Akole for crops inspection. The Additional Tahsildar, in TNC Case No. 549/1981, came to conclusion that the fields in question were being cultivated by deceased respondent No. 1 - Genu, who happened to be brother-in-law of respondents No. 2 and 3.
Thereafter, an application under section 84 of the BT&AL Act was submitted before the Sub Divisional Officer, Sangamner by the applicants. By said application, they sought restoration of possession in their favour under section 32P of the BT&AL Act.
According to the petitioners, sub-tenancy was created in favour of deceased respondent No. 1 Genu. He was unauthorized person in possession of the fields in question. The tenants did not comply with the relevant provisions of the BT&AL Act and have lost the ::: Downloaded on - 09/06/2013 14:03:32 ::: (4) tenancy rights. Therefore, they claimed to be rightful persons to seek possession of the fields in question. Their such application was allowed by the learned Sub Divisional Officer in the tenancy proceedings bearing TC No. 1/1983.
4. Feeling aggrieved, the respondents No. 1 to 3 preferred revision application before the Maharashtra Revenue Tribunal. By the impugned judgement, the revision application came to be allowed and the application of the petitioners (landlords) came to be dismissed. They filed review application which also came to be dismissed. The Maharashtra Revenue Tribunal held that application filed by the petitioners under section 84 of the BT&AL Act was misconceived and they are not legally entitled to claim restoration of the possession in respect of the fields in question.
5. Clinching question is whether the petitioners have any legal right to seek restoration of the fields in question under the provisions of section 32P or section 32R read with section 84 of the BT&AL Act.
6. Mr. Shinde would strenuously contend that when the tenant did not comply with directions of this Court to seek determination of the price of the fields in question under section 32G, then the rights ::: Downloaded on - 09/06/2013 14:03:32 ::: (5) available to him stood abrogated. He would submit that the petitioners are entitled to reclaim the fields in question since the same are in possession of a trespasser. He would further submit that the Maharashtra Revenue Tribunal failed to appreciate import of section 32P in the context and reached erroneous conclusion that the application filed under section 84 of the BT&AL Act was misconceived. He argued that the sub-tenancy could not have been created in respect of the fields in question and the eviction of such an authorized person can be sought by the petitioners. Hence, he urged to allow the petition. Per ig contra, Mr. Bade-Patil supports the impugned judgement.
7. The main thrust of argument put forth by Mr. Shinde is on the edifice that due to inaction of the deceased tenant to seek completion of statutory ownership under section 32G, the purchase had become ineffective. According to him, due to failure of the tenant to make the purchase, the petitioners are entitled to claim restoration of the lands in question. It is important to note that no order has been passed by the competent authority to the effect that the purchase had become ineffective. The rights of tenant under section 32 would depend upon nature of tenancy. The protected tenant, who was found in possession of the agricultural land on the tillers' ::: Downloaded on - 09/06/2013 14:03:32 ::: (6) day, stands on different footing than an ordinary tenant, who subsequently would acquire tenancy rights.
The BT&AL Act is a beneficial piece of legislation.
It intends to give the agricultural land to the actual tiller. Another intention behind the legislation is to disassociate the "idle landlords" from continuation of ownership and perennial enjoyment of the fruits without toiling in the land. In "Vithal Vithal Shankar Dokhe vs. Bhavdu Sakharam Dokhe deceased through his legal heirs Bhika Bhau Dokhe and others", 2007 (6) 662, 662 this Court held that the proceedings under section 32P could be initiated only if an order is passed by the competent authority holding that purchase of the tenant had become ineffective. It was further held that in absence of such order passed by any authority, the Tahsildar could not have suo moto proceeded to decide the case under section 32P. This Court, therefore, took a view that order of the Tahsildar was void and non-est in the given circumstances. In the present case too, there is no valid order rendered by any competent authority to declare that the purchase of the tenant had become ineffective. Under these circumstances, the petitioners are not entitled to claim restoration of the lands in question by invoking provisions of section 32P.
8. The scheme of section 32 of the BT&AL Act, including the relevant sections upto section 32R, is ::: Downloaded on - 09/06/2013 14:03:32 ::: (7) captioned as "(II) (II) Purchase of lands by tenants".
tenants The
procedure envisaged is to facilitate effective
purchase of the lands held by tenants in order to
confer statutory ownership on them. Section 32 (1)
reads as follows :
(1) On the first day of April 1957
(hereinafter referred to as "the tillers' day) every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding section, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if, -
(a) such tenant is a permanent tenant thereof and cultivates land personally;
(b) but and such tenant is not a permanent tenant cultivates the land leased personally;
(i) the landlord has not given notice of termination of his tenancy under section 31; or
(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land; or
(iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the lands."
A plain reading of section 32 (1) would make it manifest that the tenant found in possession on 1st day of April, 1957 would be deemed to have purchased from the landlord the land in question. Needless to say, deeming effect is given to such a purchase for ::: Downloaded on - 09/06/2013 14:03:32 ::: (8) which further procedure is provided to complete the statutory purchase. In order to deprive the tenant from his right to purchase the land, it is very much necessary that the competent authority must give a specific finding either pertaining to valid surrender of the land by the tenant or frustration of the purchase due to any specific act of the tenant. As regards contention of Mr. Shinde that the tenants are liable to be evicted in view of their failure to cultivate the lands in question personally, it would be essential to properly appreciate the import of section 32R of the BT&AL Act.
9. A plain reading of section 32R of the BT&AL Act would make it manifest that if the purchaser failed to cultivate the land personally, then he would be liable to be evicted by the Collector unless such failure is found to be backed up by sufficient reasons. There are two (2) important aspects. First, it would be for the Collector to decide whether such a purchaser has failed to cultivate the land personally without having sufficient reasons and is, therefore, liable to be evicted. If at all such finding is rendered by the Collector and it is held that the failure of the tenant to cultivate the land personally was not on account of sufficient reasons, then also the disposal of the land would be governed by section 84C. It is imperative, therefore, that section 32R ::: Downloaded on - 09/06/2013 14:03:32 ::: (9) must be conjointly read with section 84C of the BT&AL Act. Section 84C requires holding of an inquiry by the Mamlatdar to reach conclusion whether the transfer or acquisition is or is not invalid. It is thereafter that the land would be deemed as vested in the Government. The sub-clause 4 of section 84C reads as follows :
"(4) After determining the reasonable price, the Mamlatdar shall grant the land on new and impartible tenure and on payment of occupancy price equal to the reasonable price determined ig under sub-section (3) in the prescribed manner in the following order of priority :-
(i) the tenant in actual possession of the land;
(ii) the persons or bodies in the order given in the priority list;"
So, the landlords do not fall within the category of the list of priorities enumerated in sub-section 4 of section 84C. For this reason too, the petitioners cannot seek eviction of the tenants by resorting to section 32R.
::: Downloaded on - 09/06/2013 14:03:32 ::: (10)10. Nextly, for the purpose of section 32R, failure to cultivate the land must be by "purchaser of the land", which contemplates and presupposes grant of statutory ownership before the action is taken under section 32R read with section 84C of the BT&AL Act.
The tenants in the present case are not yet bestowed statutory ownership. The price of the land in question has not been determined by following due procedure. They were not called upon to deposit the price of the lands in question. The Tenancy Tribunal ought to have taken suo moto action to fix the reasonable price and thereafter ought to have called upon the tenants to deposit the same. Nothing of the sort was done. The respondents No. 2 and 3 are "deemed purchasers" and are not the actual purchasers.
The purport of section 32R appears to be that where the tenants are bestowed statutory ownership, then also they ought to cultivate the lands in question personally. In other words, the purpose appears to be that such statutory owners should not behave like "idle landlords". Otherwise it would cause repetition of the history and such statutory owners, who were one time tenants, would occupy the same position likewise of their landlord/s and a new class of their tenants would come in to existence, without having any protection. In this view of the matter, I am of the opinion that the petitioners are not entitled to claim restoration of possession of the lands in question.
::: Downloaded on - 09/06/2013 14:03:32 ::: (11)The reasons recorded by the Maharashtra Revenue Tribunal are, therefore, proper and legal.
11. In the result, the petition fails and is accordingly dismissed. No costs.
[ V.R. KINGAONKAR ] JUDGE NPJ/WP1229-90 ::: Downloaded on - 09/06/2013 14:03:32 :::