MADHARAO RAJESHWAR DESHPANDE Vs. SHANKER SINGH

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Bombay High Court dismissing a petition filed by the appellant under Article 227 of the Constitution.

(2.) The dispute relates to survey No. 284 having an area of 11 acres and 6 gunthas in Mouza Paras, Taluk Balapur, District Akola. The appellant is the owner of this field while respondent No.1 is the protected lessee. The case is governed by the Bombay Tenancy and Agricultural Lands (Vidarbha and Kutch Area) Act 99 of 1958 which came into force on December 30, 1958, hereinafter called "the Act". In August 1963 the appellant filed an application before the Tehsildar under Sections 43 (14-A) and 36 (2) of the Act for possession of the aforesaid field on the ground that respondent No. 1 had failed to exercise his right of purchase in respect of that field under the provisions of the Act. He must, therefore, be deemed to have surrendered the same to the appellant. The Tehsildar sustained the defence of respondent No. 1 that he had become an owner of the said field on April 1, 1961 under Section 46 of the Act and dismissed the application. The order of the Tahsildar was confirmed by the Deputy Collector (Tenancy Appeals) and the Maharashtra Revenue Tribunal to whom the matter was taken in appeal and revision respectively. It may be mentioned that originally the appellant had filed applications against three of his tenants including respondent No. 1 and the tribunal dismissed by one order all the three revision petitions preferred against the orders made in three cases. The appellant, however, filed a petition under Article 227 of the Constitution challenging the order made in the case of respondent No. 1 alone.

(3.) The Act as originally enacted was amended by Act 2 of 1962 which came into force on March 1, 1962. Chapter III related to termination of tenancies by landlords and special rights of tenants. Sections 38, 39 and 39-A gave rights to different categories of landlords to terminate the tenancies of their tenants for bona fide personal cultivation. A ceiling was fixed with regard to the area of which possession could be claimed as also the minimum area of land which must be left with the tenant. The tenants were given the right to purchase land in the second part of Chapter III. Section 41 (1) provided that subject to the provisions of Sections 42 to 44 a tenant other than an occupancy tenant would be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. In case of a landlord who was under some kind of disability namely, if the landlord was a minor or a widow or a serving member of the armed forces or a person subject to physical or mental disability the right to purchase land of such landlord accrued to the tenant after the expiry of two years from a date prescribed in the case of each category of such landlord. Section 42 as it stood on April 1, 1961 was as follows: