Bayaji Sambhu Mali @Borate(D) Thr. Lrs. vs Nazir Mohammed B.Zari Thr.Poa Hold.

Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1644-1645 of 2019 [Arising out of SLP(C)No(s).13627-13628 of 2012]

BAYAJI SAMBHU MALI @ BORATE(D) THROUGH LRS. APPELLANT(S)

VERSUS

NAZIR MOHAMMED BALAL ZARI THROUGH GPA HOLDER & ORS. RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. By the impugned judgment and order, the High

Court has dismissed the writ petition filed by the

appellant under Article 227 of the Constitution

against the order dated 09.01.1997 of the Maharashtra

Revenue Tribunal and the review petition filed against

the same.

3. These appeals arise under the Bombay Tenancy and

Agricultural Lands Act, 1948 (hereinafter referred to Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.02.12 as ‘the Act’).

17:52:57 IST Reason: The appellant is the tenant and the

1 respondent is the landlord. On what is described as

Tillers day i.e. 01.04.1957, the landlord was a minor.

The controversy, which we are called upon to resolve,

is whether the appellant is a deemed purchaser within

the meaning of Section 29 read with Section 32 of the

Act or whether this is a case under Section 32F of the

Act under which the tenant is obliged

to give a notice under Section 32F(1A).

4. To appreciate the question which arises before

us, it is necessary we should first set out the facts

according to the appellant which are related to the

impugned order.

5. It is the case of the appellant that the first

respondent – landlord claimed that he had attained

majority on 10.09.1966 and filed an application

bearing Tenancy Case No. 1 of 1967 before the

Mamalatdar for his personal cultivation under Section

31(3) of the Act. The appellant claimed that he had

received a notice issued by Tenancy Awwal Karkun and

was directed to appear on 05.06.1967. His statement

was recorded. By order dated 27.07.1967, the

application filed by the landlord seeking possession

2 was dismissed.

6. It is the further case of the appellant that the

first respondent – landlord filed Tenancy Appeal

(bearing No. 148 of 1967) before the Appellate

Authority. The said appeal came to be dismissed on

09.03.1968. The respondent – landlord carried the

matter further before the Tribunal by way of a

Revision Application. The Maharashtra Revenue

Tribunal vide order dated 22.04.1970 dismissed the

Revision Application. It is thereafter the tenant-

initiated proceedings under Section 32G of the Act in

the year 1977. The Original Authority, however, took

the view that the tenant did not comply with the

provision of Section 32F of the Act which was

challenged before the Sub-Divisional Officer who

confirmed the order vide order dated 30.09.1978.

7. The Tribunal, on a Revision filed by the

appellant, set aside the order and remanded the matter

for a fresh inquiry under Section 32G of the Act.

8. By order dated 20.07.1990, the Additional

Tehsildar, after noticing certain discrepancies in the

3 extract of Appeal Register relating to the proceeding

commenced by the landlord found that the appellant had

failed to prove that the landlord had exercised his

right to recover possession under Section 31 of the

Act and therefore the provision of Section 32F of the

Act applies. Since the same had not been complied

with, therefore the purchase in favour of the

appellant was found to be ineffective.

9. The Appellate Authority, by order dated

24.04.1992, however, found otherwise and allowed the

appeal filed by the appellant. The landlord

challenged the order of the Appellate Authority. By

order dated 09.01.1997, the Tribunal set aside the

order of the Appellate Authority and confirmed the

order passed by the Additional Tahsildar and found

that the appellant had not complied with the

provisions of Section 32F(1A). It is against the said

order of the Tribunal, the appellant filed the writ

petition. The High Court dismissed the writ petition

and though the appellant filed a review petition, the

same was also rejected.

10. We have heard learned counsel for the parties.

4

11. Learned counsel for the appellant contended that

this is a case where the matter should be treated as

governed by the provisions under Section 29 read with

Section 31 of the Act. In a case governed by these

provisions, learned counsel pointed out that there is

no requirement of issuing notice within the meaning of

Section 32F. He relied on Tukaram Maruti Chavan v.

Maruti Narayan Chavan (D) by Lrs. and Ors. (2008) 9

SCC 358 and Sudam Ganpat Kutwal v. Shevantabai

Tukaram Gulumkar (2006) 7 SCC 200.

12. It is clear that the landlord had filed an

application under Section 29 of the Act and the said

application was rejected and the rejection was upheld

right upto the Tribunal in Revision.

13. These documents have been brushed aside as also

the legal effect of the orders passed. He would

further contend that though he had produced certified

copies along with review petition in the High Court

even then the same were not considered. He would

maintain that in a case where there is a deemed

purchase, there is no requirement to issue a notice

under Section 32F(1A).

5

14. Per contra, learned counsel for the respondent

would support the order of the High Court. He would

contend that it is mandatory to give a notice under

Section 32F(1A). Without giving such a notice, it is

not open to contend that he must be deemed to have

purchased the right. He would also point out that the

case of the respondent is that the application was not

accepted since the certified copies were produced only

after the dismissal of the writ petition that too in

the review. Therefore, no store can be laid by the

said documents. He also contends that it was

appellant’s case that there was substantial compliance

of Section 32F(1A) in the High Court.

15. Time is now apposite to make a survey of

statutory scheme of the Act. The Act was enacted in

the year 1948. We must advert to the following

provisions which we think are relevant for the

purposes of this case.

16. Section 29 deals with Procedure of taking

possession which, inter alia, reads as follows:

29. (1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act 6 may apply in writing for such possession to the Mamlatdar. The application shall be made in such form as may be prescribed [and within a period of two years from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be].

(2) [Save as otherwise provided in sub- section (3A), no landlord] shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form [and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him].

(3) On receipt of application under sub- section (1) or (2) the Mamlatdar shall, after holding an inquiry, pass such order thereon as he deems fit :

[Provided that where an application under sub-section (2) is made by a landlord in pursuance of the right conferred on him under section 31, the Mamlatdar shall first decide, as preliminary issues, whether the conditions specified in clauses (c) and

(d) of section 31A and sub-sections (2) and (3) of section 31B are satisfied. If the Mamlatdar finds that any of the said conditions is not satisfied, he shall reject the application forthwith].

17. Section 31 deals with Landlord’s right to

terminate tenancy for personal cultivation and non

7 agricultural purpose which reads as follows:

31. (1) Notwithstanding anything contained in sections 14 and 30 but subject to sections 31A to 31D (both inclusive), a 3 [landlord (not being a landlord within the meaning of Chapter III-AA) may], after giving notice and making an application for possession as provided in sub-section (2), terminate the tenancy of any land (except a permanent tenancy), if the landlord bona-fide requires the land for any of the following purposes :–– (a) for cultivating personally, or

(b) for any non-agricultural purpose.

(2) The notice required to be given under sub-section (1) shall be in writing, shall state the purpose for which the landlord requires the land and shall be served on the tenant on or before the 31st day of December 1956. A copy of such notice shall, at the same time, be sent to the Mamlatdar. An application for possession under section 29 shall be made to the Mamlatdar on or before the 31st day of March 1957.

(3) Where a landlord is a minor, or a widow, or a person subject to mental or physical disability then such notice may be given [and an application for possession under section 29 may be made,]––

(i) by the minor within one year from the date on which he attains majority;

(ii) by the successor-in-title of a widow within one year from the date on which her interest in the land ceases to exist;

8

(iii) within one year from the date on which mental or physical disability ceases to exist;

[Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in the sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry, is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a large proportion].

18. 31A. The right of a landlord to terminate a

tenancy for cultivating the land personally under

section 31 shall be subject to the following

conditions:–

------

(c) The income by the cultivation of the land of which he is entitled to take possession is the principal source of income for his maintenance.

(d) The land leased stands in the record of rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter during the 9

period between the said date and the appointed day in the name of the landlord himself, or of any of his ancestors 2 [but not of any person from whom title is derived, whether by assignment or Court sale or otherwise], or if the landlord is a member of a joint family, in the name of a member of such family].

19. Section 32 deals with Tenants deemed to have

purchased land on tillers’ day. It reads as follows:

32. [(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) such tenant is not a permanent tenant but cultivates the land leased personally; and

(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 10 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 ] :

Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the [Maharashtra Revenue Tribunal] under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as “the postponed date” : [Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso].

20. Section 32A provides that Tenants are deemed to

have purchased upto ceiling area.

32A. A tenant shall be deemed to have purchased land under section 32,- (1) in the case of a tenant who does not hold any land as owner but holds land as tenant in excess of the ceiling area, upto the ceiling area;

(2) in the case of a tenant who holds land as owner below the ceiling area, 11 such part of the land only as will raise his holding to the extent of the ceiling area.

21. Section 32B provides for the circumstances in

which the tenants are not deemed to have purchased

lands. It provides that if the tenant holds land

partly as owner and partly as tenant but the area of

the land held as owner is equal to or exceeds

ceiling area, he shall not be deemed to have

purchased the land held by him as a tenant under

Section 32.

22. Section 32C permits the tenants entitled to

choose lands to be purchased. Section 32D

contemplates when tenants are deemed to have purchased

fragments. The balance of any land, if any, after the

purchase by the tenant under Section 32 shall be

disposed of in the manner laid down in Section 15 as

if it were land surrendered by the tenant. This is

the mandate of Section 32E.

23. Section 32F deals with Right of tenant to

purchase where landlord is minor etc. which reads as

follows:

32F. (1) Notwithstanding anything 12 contained in the preceding sections,–

(a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability, the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 [and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimation to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31] :

[Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property and not in a larger proportion].

(b) where the tenant is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under section 32 may be exercised–

(i) by the minor within one year from the date on which he attains majority;

13 (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist;

(iii) within one year from the date on which the mental or physical disability of the tenant ceases to exist;

(iv) within one year from the date on which the tenant ceases to be a serving member of the armed forces :

[Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion].

[(1A) A tenant desirous of exercising the right conferred on him under sub- section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub- section] :

[Provided that, if a tenant holding land from a landlord (who was a minor and has attained majority before the commencement of the Tenancy and 14 Agricultural Lands Laws (Amendment) Act, 1969) has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-

section (1), he may give such intimation within a period of two years from the commencement of that Act].

(2) The provisions of sections 32 to 32E (both inclusive) and sections 32G to 32R (both inclusive) shall, so far as may be applicable, apply to such purchase.

24. Section 32G reads as follows:-

32G. (1) As soon as may be after the tillers’ day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon –

(a) all tenants who under section 32 are deemed to have purchased the lands,

(b) all landlords of such lands, and

(c) all other persons interested therein, to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each of them to appear before it on the date specified in the public notice.

(2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as tenant. 15

(3) Where any tenant fails 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 :

Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.

(4) If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32H and of sub-

section (3) of section 63A :

[Provided that where the purchase price in accordance with the provisions of section 32H is mutually agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenant’s consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement].

(5) In the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may be, after such date 16 determine the price of the land.

(6) If any land which, by or under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such 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.

25. Section 32H provides for the purchase price and

its maxima.

26. Now that we have the case as setup by learned

counsel for the appellant and learned counsel for the

respondents and also the statutory scheme, we must

delve a little deeper into the facts and also apply

the same in the backdrop of the scheme of the Act.

The High Court has proceeded on the basis that the

appellant has not given notice under Section 32F(1A).

According to the High Court, it is mandatory. Learned

counsel for the respondent also relies on that

reasoning. On the other hand, the case of the

appellant is that in accord with his case, there is no

17 requirement to give a notice under Section 32F(1A).

The landlord would point out that the Court may notice

that it is the case of the appellant that Section

32F(1A) has been substantially complied with by the

appellant.

27. Section 29(2) contemplates that no landlord shall

obtain possession of any land or dwelling house held

by a tenant except under an order of the Mamlatdar.

He is obliged to make an application within two years

from the date on which the right to obtain possession

of the land or dwelling house, as the case may be is

deemed to have accrued on him. Subsection (3)

provides that the Mamlatdar is to pass an order after

conducting such inquiry. In the proviso, it may be

noticed that where an application under subsection (2)

is made by a landlord in pursuance of the right

conferred upon the landlord under Section 31, in such

case, the Mamlatdar is to first decide preliminary

issues which include whether the conditions in clauses

(c) and (d) of Section 31A are satisfied. He must

also be convinced that the conditions mentioned under

subsections (2) and (3) of Section 31B are fulfilled.

18 He is dutybound to reject the application, if the

conditions therein are not fulfilled. With the rest

of the provisions contained in Section 29, we may not

be detained. Therefore, now coming to Section 31,

Section 31 falls under Chapter III titled Special

Rights and Privileges of Tenants and Provisions for

Distribution of Land for Personal Cultivation.

28. Chapter III is divided in two parts. Section 31

falls under Part (I) which provides - Termination of

Tenancy for Personal Cultivation and Non Agricultural

Use. It will be noticed that Section 32 and other

provisions which follow the same fall under Part (II)

which deals with Purchase of Land by Tenants.

29. Reverting back to Section 31, it contemplates

that subject to Sections 31A to 31D both inclusive and

notwithstanding whatever may be contained in Sections

14 and 30, a landlord after giving notice and making

an application for possession as provided in

subsection (2) can terminate the tenancy of any land

barring permanent tenancy, should he require the land

for cultivating personally or for any non agricultural

purpose.

19

30. Subsection (2) provides that a notice is to be

given in writing. It shall state the purpose for

which the landlord requires the land. It is to be

served on or before 31st Day of December 1956. A copy

of the said notice is to be sent to the Mamlatdar. It

is thereafter clearly provided that an application for

possession under Section 29 is to be made to the

Mamlatdar on or before 31st day of March 1957.

31. However, subsection (3) of Section 31

contemplates that where a landlord is a minor or a

widow or a person subject to mental or physical

disability, the notice may be given and an application

for possession under Section 29 may be made by the

minor within one year from the date on which he

attains majority. We are not concerned here with the

other categories. Therefore, we can hold that if a

landlord is a minor, he can invoke provisions of

Section 29 and an application for possession under

Section 29 can be made within one year from the date

on which he attains majority. Section 31A provides

for the conditions of termination of tenancy. It

limits the right of the landlord to terminate a

20 tenancy for cultivating the land personally under

Section 31 by hedging the said right with certain

conditions. The conditions also may not concern us.

It is now that we must pass on to Section 32.

32. Section 32 declares that on Tillers day which is

the First day of April 1957, every tenant shall be

deemed to have purchased from his landlord free of all

encumbrances subsisting thereon on the said day the

land held by him. There are two limitations which can

be culled out from the said provisions. A declaration

under Section 32 is made subject to the other

provisions of the said section. It is further made

dependent on the operation of the next succeeding

sections. In other words, the provisions which follow

Section 32 will control the application of Section 32.

33. What is relevant to us is the first proviso of

Subsection (1) which is relied upon by the appellant.

This came to be added by the Bombay Act 38 of 1957.

If it is broken down, it provides as follows:

1. The application is made by the landlord under Section 29 for obtaining possession of the land;

2. it has been rejected by the Mamalatdar or by the Collector in appeal 21 or in revision by the Maharashtra Revenue Tribunal. [The Maharashtra Revenue Tribunal has been brought in by way of Maharashtra Act 23 of 2007 with effect from 13.12.2007];

3. if the aforesaid elements are satisfied the proviso declares that the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed;

4. the date on which the final order of rejection is passed is to be referred to as 'the postponed date'.

34. Since Section 32 has been made subject to the

next succeeding sections, it will be noted that the

next succeeding sections in the form of Sections 32A,

32B, 32C and 32D provide for the conditions and

limitations subject to which the deeming provision

operates. In other words, the deemed right which is

conferred on a tenant under Section 32 will be enjoyed

subject to the restrictions under Sections 32A to 32D.

35. Before we discuss Section 32F, we deem it

appropriate to refer to Section 32G. Section 32G

deals with the power of the Tribunal to issue notice

and determine the price of the land to be paid by the

tenants. Section 32G(5) declares that in the case of

a tenant who is deemed to have purchased the land on 22 the postponed date the Tribunal shall determine the

price of the land. The ‘Tribunal’ is defined in

Section 2(19) as the Agricultural Lands Tribunal under

Section 67.

36. Section 32G inter alia provides that the Tribunal

shall publish or cause to be published a public notice

calling upon the persons who are deemed to have

purchased the lands. This is apart from calling upon

the landlords and other persons to appear on the date

specified in the notice. The failure of the tenant to

appear or a tenant who makes a statement that he is

not willing to purchase the land will result in the

Tribunal ordering in writing declaring that such

tenant is not willing to purchase and the purchase is

ineffective. If the tenant is willing to purchase,

the Tribunal after giving an opportunity to the

landlord and the tenant determine the price.

37. Reverting back to Section 32F, it begins with a

non obstante clause. The non obstante clause is qua

anything which is stated in the preceding sections.

38. It provides inter alia for a right of the tenant

to purchase where the landlord is a minor tenant. In

23 such a case, he would have the right to purchase

within a period of one year under Section 32. This

period of one year will begin to run from the expiry

of the period during which the landlord is entitled to

terminate the tenancy under Section 31.

39. Section 31 provides for a period of one year from

the date on which the minor attains majority when the

landlord is a minor for him to give notice and

followed by an application under Section 29.

40. Section 32F further provides that the landlord is

obliged to send an intimation to the tenant of the

fact that he has attained majority before the expiry

of the period during which the landlord can terminate

the tenancy under Section 31.

41. We will illustrate working of the Section with a

concrete example.

If a landlord is a minor and he attains

majority as on 01.01.1966 then under Section 31,

he will get a period of one year for terminating

the tenancy. The period will run out on

31.12.1966. The landlord is obliged to intimate

his tenant about the fact that he has attained

24 majority before 31.12.1966. Thereupon, the tenant

if he wishes to purchase, he would have the right

to give a notice within a period of one year from

31.12.1966. Thus, he would have the period till

30.12.1967. As to how the intimation is to be

given under subsection (1) of Section 32F is

provided in Section 32F(1A). Section 32F(1A)

provides he must give an intimation about his

exercising the right under subsection (1) both to

the landlord and the Tribunal in the manner

prescribed within the period mentioned in

subsection (1) which we have explained by way of

an illustration. The proviso which was added by

the Act 49 of 1969 contemplates an extended period

of giving the intimation by a tenant who is in

possession with which we may not be concerned.

42. We are inclined to proceed in this case on the

basis that the appellant had not given intimation

within the meaning of Section 32F(1A) of the Act. On

the other hand, the specific case which is pressed

before us is that what is crucial is he must be

treated as a deemed tenant having regard to the fact

25 that the respondent – landlord unsuccessfully filed an

application within the meaning of Section 29 read with

Section 32.

43. At this juncture, we must focus on the facts

given by the landlord more closely. As we have

noticed, the case of the appellant is that the

respondent filed an application under Section 29 and

the same came to be rejected by order dated

27.07.1967. The landlord, according to the appellant,

preferred an appeal which was rejected on 09.03.1968.

44. In the order dated 09.03.1968, the Appellate

Authority found glaring loopholes in the evidence of

the first respondent. On the one hand, there was an

entry regarding the date of birth which was in the

school register and on the other hand there was an

entry in the birth register. One date of birth was

shown as 10.09.1947 whereas the other date of birth

was shown as 04.06.1948. The school certificate shows

that the date of birth is 04.06.1948 where as the date

given in the birth register is 10.09.1947.

45. The application was filed by the first respondent

26

- landlord on 20.05.1967. If the date of birth is

taken as 04.06.1948, which was apparently pressed upon

by the first respondent, the application dated

20.05.1967 would have been within time. Whereas if

the date of birth is taken as 10.09.1947, the

application filed by the respondent was clearly time

barred. The Authority did not accept the version of

the landlord.

46. From the orders which are produced before us in

the revision application filed by the first

respondent, the Maharashtra Tribunal has confirmed

this finding. The revision application was dismissed.

47. It is thereafter that the appellant filed an

application purporting under Section 32G. As we have

noticed the matter travelled upto the Tribunal which

remanded it to the Original Authority, it is

thereafter that a new round of litigation commenced

and which culminated in the impugned order of the High

Court. In this round, the order of the Original

Authority went against the appellant and it is found

that the landlord became a major on 04.06.1966.

48. He found that the provisions of Section 32F are

27 applicable. The Original Authority further reasoned

that it was necessary for the appellant to exercise a

right of purchase by giving intimation under Rule 20

of the Rules, 1956 within two years from the date of

attaining majority i.e. by 04.06.1968. This mandatory

provision was not complied with by the tenant and he

lost his right. Regarding the proceedings at the

hands of the first respondent – landlord, it is stated

as regards extract of appeal register, there is some

discrepancy in the extract. It has mentioned that the

date of lower court order is 27.07.1967 and the date

of receipt is 19.06.1967 (apparently the date of

receipt is the date of receipt of the appeal, in other

words, the discrepancy is that the date of the appeal

is earlier than the date of the order which is

impugned in the appeal). It is further stated that

there is no evidence by the first respondent to

establish that the landlord terminated the tenancy and

filed an application for possession of the suit land

under Section 29 read with Section 31 after attaining

majority. Therefore, it was for the tenant to

exercise his right of purchase under Section 32F(1A) 28 which he failed to exercise and thus resulted in the

loss of his right. The Assistant Collector in the

appeal filed by the appellant allowed his appeal. The

Tribunal reversed the order of the Appellate Authority

and restored the order of the Original Authority. The

Tribunal has proceeded on the basis of the discrepancy

in the appeal and the order is substantially on the

lines of what the Original Authority has proceeded to

hold. It is further pointed out that where the party

is to produce the primary evidence it would be a

certified copy and nothing else. The landlord has

denied the filing of the case for possession and the

tenant / appellant has failed to comply with the

provisions of Section 32F. He has lost the right to

purchase the suit land.

49. The High Court has adverted to the provisions and

found there was a serious doubt expressed about the

initiation of proceedings filed by the landlord and

the learned Single Judge could not see how the

Tehsildar and the Agricultural Land Tribunal have

committed an error apparent on the face of the record

or perversity in regard to the finding about giving

29 intimation. It was further found that in the

proceedings under Section 32G, it was permissible to

the landlord to raise an issue of non compliance under

Section 32F(1A) by the tenant.

50. It was reiterated that intimation to the landlord

and the Tribunal under Section 32F(1A) is a mandatory

pre-requisite.

51. The argument of the appellant that the

proceedings after the remand must be treated as a

continuation of an earlier round of litigation and

there is a substantial compliance with Section 32F(1A)

was not accepted.

Interplay between Section 29 read with first proviso to Section 32(1) and Section 32F

52. A perusal of the First Proviso to Section 32(1)

read with Section 29 would show that when an

application is filed by the landlord for possession

and that application is rejected then the tenant is

deemed to have purchased the land. With reference to

the date on which the order rejecting the landlord's

application under section 29 read with Section 32 is

passed. This is a case of deemed purchase. Section

32F, on the other hand, entitles the tenant to 30 purchase. This is applicable in a situation where the

landlord is a minor and on attaining majority though

he has a period of one year from the date on which he

attains majority to terminate the tenancy and he does

not do so. Then the time starts ticking for the

tenant from the expiry of the period of one year from

which the minor landlord becomes major.

53. If there is no deemed tenancy within the meaning

of Section 32 proviso read with Section 29 then the

only alternative available for the tenant is to

purchase the right by invoking provision of Section

32F. Both cannot exist together viz. if a person has

a deemed status, there is no need for him to apply for

purchase under Section 32F. Section 29 read with

Sections 32 and 32F deal with two mutually exclusive

situations. In a case covered by Section 29 read with

Section 32(1) the tenant acquires the deemed status

and in a case where a matter is covered by Section

32F, there is no deemed status for the tenant but he

has to invoke provision of section 32F and issue a

notice both to the landlord and to the Tribunal within

the meaning of Section 32F(1A) and the matter has to

31 be decided by the Authority.

54. In the facts of this case, if it is established

that provisions contained in Section 32 read with

Section 29 are applicable in so far as if we accept

the case of the appellant that the respondent landlord

had invoked Section 29 read with Section 32, being a

case of a minor who became entitled to apply within a

period of one year from the date of attaining majority

and the application culminated in the rejection of his

case then the appellant would acquire deemed status.

If he acquires deemed status, then there could be no

need to invoke Section 32F. Rather there is no need

for him to again acquire a status which is conferred

upon him by law by a deeming provision. Nothing more

is required to be done by the tenant in such a case.

55. Coming to the merits of the matter, the appellant

has produced material, the orders passed by the

Appellate Authority and also by the Tribunal in

Revision. It does show by invoking Sections 29 and 32,

the first respondent had applied by projecting the

case that he was born in 1948. The application filed

by him stood rejected on the basis that the 32 application was barred as birth register showed that

he was born in 1947. Though the appellant has not

produced certified copies earlier, the appellant has

produced the same in the High Court after the judgment

was delivered in the writ petition along with the

review petition.

56. A reference to case law does not advance the case

of the respondents. In Amrit Bhikaji Kale and Ors.

v. Kashinath Janardhan Trade and Anr. (1983) 3 SCC 437

which related to the proceedings under the Same Act,

this Court held as follows:

“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 of 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.

Section 32F has an overriding effect over Section 32 as it opens with a non obstante clause. The combined effect of Sections 32F and 32 is that where the landlord is under no disability as envisaged by Section 32F the tenant of 33 such landlord by operation of law would become the deemed purchaser by where the landlord is of a class or category as set out in Section 32F, the date of compulsory sale would be postponed as therein provided. Since ‘T’, the landlord was under no disability and was alive on April 1, 1957 his tenant ‘J’ became the deemed purchaser on the tillers’ day. Therefore, the relationship of landlord and tenant between ‘T’ and ‘J’ came to be extinguished and no right could be claimed either by ‘T’ or anyone claiming through him such as ‘A’ or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957.”

57. In Anna Bhau Magdum, Since Deceased by LRs v.

Babasaheb Anandrao Desai (1995) 5 SCC 243, the Court,

no doubt, held that requirement under Section 32F(1A)

was mandatory. There cannot be any automatic purchase

under Section 32 read with Section 32G in such a case.

However, it is relevant to note para 15.

“15. The submission of Shri Wad is that if express statement made by the tenant could not stand in the way of his availing the right conferred by the Act, there is no reason why merely because of inaction on his part a tenant should be deprived of the right. The observations aforementioned made in Amrit Bhikaji Kale have to be read in the context of the facts of that case where it was found that the landlord who was major and was under no disability, was alive 34 on 1-4-1957 and the provisions of Section 32F were not attracted and there was deemed purchase of the land by the tenant by virtue of Section 32. The subsequent statement made by the tenant in proceedings before the Aval Karkoon were, therefore, held to be of no avail. The position in the instant case is, however, different. The respondent – landlord was a minor on 1-4-1957 and the case was governed by Section 32F and there has been non compliance of sub- section (1A) of Section 32-F.”

58. It is also relevant to note that it was not a

case where the question related to ‘postponed date’

within the meaning of the first proviso to Section

32(1), but the principle relating to deemed status

under Section 32(1) will apply in respect to deemed

status under the proviso.

59. In Sudam Ganpat Kutwal v. Shevantabai Tukaram

Gulumkar (2006) 7 SCC 200, the landlord filed an

application under Section 31 read with Section 29 of

the Act. The claim was accepted and possession of

half of the land was directed to be delivered for a

bona fide cultivation. The other half was to remain

with the tenant. Thereafter, the landlady filed an

application seeking possession of the remaining half

of the land alleging certain defaults by the tenant. 35 Later, the successor-in-interest of the

landlady filed an application under Section 32(P)

read with Section 32F for declaration that the

deemed statutory purchase by the tenant was void

as there was no required notice under Section

32F(1A) of the Act. This Court referred to the

provisions and culled out its conclusions in para

23, which read, inter alia, as follows:

“23. The position as disclosed by a combined and harmonious reading of Sections 31, 32, 32F and 32G may be stated thus :

a) Where the landlord has not served on the tenant, a notice of termination (as stated in clause (b) of sub-section (1) of section 32), the tenant is deemed to have purchased the land on the tillers day (1.4.1957);

b) Where the tenant is deemed to have purchased the land on the Tillers Day (1.4.1957), the Lands Tribunal is required to issue notice and determine the price of land to be paid by tenant.

Where there is a deemed purchase, but the right to purchase is postponed, the Land Tribunal shall determine the price of land, as soon as may be after the postponed date;

--------

f) Where a landlord, who is a widow, 36 exercises her right of termination and secures possession of part of the tenanted land for personal cultivation under section 31(1) of the Act, then there is no question of her successor- in-title giving a notice of termination within one year from the date on which the widow’s interest ceases to exist. When section 31 (3) ceases to apply, section 32F also will not apply and there is no need for the tenant to give any intimation under section 32F(1A).”

60. In Tukaram Maruti Chavan v. Maruti Narayan

Chavan (Dead) by LRs and Others (2008) 9 SCC 358, the

question was whether the appellant could exercise

right to purchase in the absence of intimation

under Section 32F(1A) to the landlord and to the

Tribunal.

61. The original landlady who was a widow died in

1964 leaving behind him two sons. The original tenant

initiated proceedings under Section 32G which was

ordered in his favour.

62. The Court was of the view that notice under

Section 32F(1A) is mandatory. However, the Court also

inter alia held as follows:

“The required notice is not mandatory only in a case when a widow landlady has already exercised her right under Section 31(1) i.e. when during her 37 lifetime, a notice is served to the tenant that the landlady requires the land bona fide. Once a notice under Section 31(1) is served by such a widow landlady, the further benefit of Section 31(3) is not available.”

63. No doubt, learned counsel for the respondent

submitted that in the event the Court is inclined to

take a view that the certified copies are to be looked

into, the matter may be remitted back.

64. We are of the view that there is a wealth of

documents showing that the respondent litigated the

matter at three levels i.e. the application filed by

the landlord dated 20.05.1967, the order passed in

appeal and still further the order in revision before

the Tribunal. Relying on some discrepancy as noted as

regards the date of filing of the appeal and the date

of the impugned order, the Authorities and the High

Court should not have found against the appellant.

65. There is no doubt in the case that the appellant

admittedly was a tenant of the first respondent. We

hold it is a case where there was no need for the

appellant to send any intimation within the meaning of

38 Section 32F(1A). He had acquired a deemed status with

the rejection of the application filed by the

landlord. The appellant was not obliged to do

anything further. In view of the matter, we allow the

appeals and set aside the impugned decisions passed by

the High Court and restore the order passed by the

Collector. There will be no order as to costs.

…....................J. [ASHOK BHUSHAN]

…....................J. [K.M. JOSEPH] NEW DELHI;

FEBRUARY 12, 2019.

39