Bombay High Court
Shri Subhash Govind Bhanushali vs The State Of Maharashtra And Others on 24 December, 1997
Equivalent citations: 1998(2)BOMCR470, 1998(1)MHLJ595, 1998 A I H C 1639, (1998) 1 LACC 526, (1998) 1 MAH LJ 595, (1998) 2 ALLMR 482 (BOM), (1998) 2 BOM CR 470
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER T.K. Chandrashekhara Das, J.
1. This writ petition is filed challenging the orde dated 17th December, 1983 passed by the Additional Commissioner, Konkan Division, Bombay in Appeal/Desk/WTN/4713 communicated on 16-5-1984 evidenced by Exh. A to the writ petition. By the impugned order, the land admeasuring 18 acres and 16 gunthas in Vikramgarh village, Tal. Javhar District Thane, comprising in various survey numbers was ordered to be restored in favour of respondent Nos. 5 and 6 in exercise of the power under section 7 of the Maharashtra Lands Restoration to Scheduled Tribes Act, 1974 (hereinafter referred to as "Restoration Act" for short) in Restoration Case NO.TNC/ACT XIV/SR-9 dt. 18th September, 1977. The Divisional Commissioner passed this impugned order setting aside the order passed by the Tahsildar under section 4 of the said Act whereby the application for restoration of land in question at the instance of respondent Nos. 5 and 6 were dropped.
2. The short facts for the purpose of this case can be stated thus :
The petitioner is bona fide purchaser of the aforesaid land form erstwhile owner Shri. Shrirnant Yeshwantrao Maharaj respondent No. 4 as per sale deed dated 6-5-1972. Earlier the aforesaid land was in possession by the tribal respondent Nos. 5 and 6, By virtue of section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called "Tenancy Act") proceedings were initiated in favour of the respondent Nos. 5 and 6 as the respondent Nos. 5 and 6 were holding the land as tenants on the tiller's date namely 1-4-1957. However, the proceedings under section 32-G of the Tenancy Act has become ineffective. Consequently by virtue of section 32-P of the Tenancy Act, land was again divested to the landlord respondent No. 4 from whom, as noted earlier, the present petitioner purchased the land. According to petitioner, the character of the land itself has been changed in respect of the portion of a land and with permission of the Collector, the land got converted into non-agricultural use for the area of 2962 sq. mtrs. When the Restoration Act came into force, respondent Nos. 5 and 6 applied under section 4 of the said Act for restoration of the land. Tahsildar as stated earlier, after hearing the parties dropped the proceedings holding that the said Act does not apply to the land. No appeal has been filed against that order. After five years second respondent, Divisional Commissioner, Konkan Division, Mumbai issued notice invoking section 7 of the Act and ultimately impuged order came to be passed.
3. The learned Counsel for the petitioner submits that the order passed by the Divisional Commissioner is liable to be set aside on the ground of limitation alone. He submits that even though the Act does not prescribe any period of limitation for invocation of section 7 of the Restoration Act, second respondent has erred in passing the impugned order as he has not invoked his power within the reasonable time. The Counsel for the petitioner further submits that the land which was disposed of by the operation of provisions of section 32-P of the Tenancy Act, the Restoration Act has no applications as held in the decision reported in State of Maharashtra v. Khatua Makauji & Co. Pvt. Ltd., Bombay, 1987 M.L.J. 90S as the disposal of the land invoking section 32-P cannot be treated as transfer of the tribal land to the non-tribal. The learned G.P. has contended that the land has been disposed of in favour of the respondent No. 4 as per section 32-P and contends that order passed by Mamlatdar to transfer the land in favour of the respondent No. 4 invoking section 32-P can very well be considered as transfer going by the definition of "transfer" in relation to land occurring in section 2(1)(i) of the Restoration Act? In order to appreciate the argument of the learned G.P. we have to examine the definition of transfer in the Restoration Act.
"Transfer" in relation to land means the transfer of land belonging to a tribal made in favour of a non-tribal during the period commencing on the 1st day of April, 1957 and ending on the 6th day of July, 1974, either -
(a) by act of parties, whether by way of sale, gift, exchange, mortgage or lease or any other disposition made inter vivos, or---
(b) under a decree or order of a Court, or
(c) for recovering any amount of land revenue due from such Tribal, or for recovering any other amount due from him as an arrear of land revenue, or otherwise under the Maharashtra Co-operative Societies Act, 1960 or any other law for the time being in force but does not include a transfer of land falling under the proviso to sub-section (3) of section 36 of the Code; and the expressions, "Tribal-transferor" and "non-Tribal -Transferee" shall be constructed, accordingly;"
4. The learned G.P., emphasizing Clause (i)(b) of sub-section (1) of section (2) of the Restoration Act that any transfer made by the Tahasildar can be treated as a decree or order of a Court and therefore it will amount to transfer and respondent No. 4 got the property by orders passed by the Tahasildar invoking under section 32-P of the Bombay Tenancy Act. I cannot appreciate the contention of the learned G.P. The learned G.P. advanced his argument overlooking the very significant and important legal implication that has been taken place when section 32-G proceedings has become ineffective. It is true by operation of section 32-G the tenant respondent Nos. 5 and 6 have became deemed purchaser of the land at least ostensibly. It is profitable in this context to refer to observation of the Supreme Court cited below in construing the legal effect of section 32-G of the Bombay Tenancy and Agricultural Lands Act in the case, Amrit Bhjikaji v. Kashinath Janardanan, . Therefore, it is unquestionably established that :
"On the tillers" day, the landlord's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant.
That very moment, landlord tenant relationship as understood in common law or Transfer of Property Act comes to an end. The link and chain is broken. The absent non-cultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable . The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under section 32-G. In other words, the landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the State. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. 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, . Foll."
5. In the light of the above observation, it has become crystal clear that on invoking section 32-G the tenant has become absolute owner of the land. But we have to examine what would happen if the proceedings of section 32-G become ineffective. The Legislature itself gives answer to this question. When section 32-G becomes ineffective for the reasons of either for non payment of the purchase price or for not taking any other action in the matter, the said land will be disposed of by the State under section 32-P of the Bombay Tenancy Act. Section 32-P of the Bombay Tenancy Act reads as follows :
'32-P(1) : where the purchase of any land by tenant under section 32(2) becomes ineffective under section 32-G or 32-M or where a tenant fails to exercise the right to purchase the land held by him within the specified period under section 32-F, the (Tribunal) may suo motu or on an application made on this behalf and in case other than those in which the purchase has become ineffective by reason of section 32-G or 32-M, after holding a formal inquiry direct that the land shall be disposed of in the manner provided in sub-section (2).
32-P(4) : Where any land or portion thereof cannot be surrendered in favour of the landlord and where such land or portion is offered for the sale under sub-section (2), but no person comes forward to purchase such land or portion, as the case may be, shall vest in the State Government and the (Tribunal) shall determine the price of such land or portion in accordance with the provisions of section 63-A and the amount of the price so determined shall, subject to the provisions of section 32-E, be paid to the owner thereof."
6. When proceedings under section 32-G become frustrated, section 32-P says how the land should be dealt with by the State Government and the land has to be disposed of in the order of preference as enumerated under sub-section (2)(b) of section 32-P. In case such disposal also becomes ineffective by any reason, the subsection (4) of section 32-P says that land ultimately vests in the State Government and the Tribunal shall determine the price of such land or portion in accordance with the provisions of section 63-A and the amount of the price so determined shall, subject to provisions of section 32-E be paid to the owner thereof. It has to be noted that once proceedings under section 32-G has become ineffective, the land already vested in tenant becomes divested and the tenants ceases to be the owner of the land. Then a question may arise what will happen to title of the land during the interregnum period, namely, between the frustration of proceedings under section 32-G and the disposal of the land under section 32-R According to law of property, prevailing in India, one can not visualise a situation at any point of time that the property is not having title holder and howsoever, short period it may be the title of the property cannot hang in vacuum without a title holder. There should be some juristic entity to be invested with the title of the land. According to section 32-P(1) the tribunal has to dispose of the property. By applying the principles of harmonious construction and also for giving effect to the statutory provisions that the land is deemed to have been vested in Government after title is divested from the tenant. If such a principle of construction is not adopted the entire scheme of this Act will end up in absurdity. Therefore, once the land is divested from the tenant, it goes to the State and State thereafter dispose it of in the manner prescribed under section 32-R 4th respondent in this case came to be in possession of the land by invoking section 32-R A person or authority who obtains land by operation of sub-section (1) of section 32-P cannot be said to be a transferee of the tribal tenant from whom the land was already divested, consequent on the frustration of the proceedings under section 32-G. Technically speaking the State Government has become transferor of the land and, therefore, as rightly held by the Division Bench of this Court (supra) that it cannot be said that land disposed of by the virtue of section (1) of section 32-P of the Bombay Tenancy Act is a land belonging to the tribal.
7. Viewing the things in this perspective, I cannot accept the contention of learned G.P. The 4th respondent since obtained the land by virtue of the order of the tribunal, therefore, it does not come under definition of sub-section (i) of section 2 of the Restoration Act. Though it may be called as "transfer"; but it cannot be treated as "transfer" of tribal land. It is only a transfer of the land vested in the Government, and the Government is transferring the land to the beneficiaries prescribed under section 32-P(1). In view of this, I do not find any justification of the impugned order. The Additional Commissioner has committed grave illegality that too after lapse of five years in restoring the land to the respondent Nos. 5 and 6 invoking his powers under section 7 of the Restoration Act as there was no transfer of Tribal land.
8. In the result, writ petition is allowed.
9. Rule in terms of Prayer Clause (c) is made absolute and the impugned order Exh. A in Appeal Desk/WTN/4713 is set aside.
There shall be no orders as to costs.
10. Petition allowed.