HUSEN ABA BAHADUR Vs. SAKHARAM GANESH PUJARI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune, Camp at Kolhapur, dated August 2, 1988 in Revision Application No. MRT-KP-119/84.

(2.) THE petitioners herein are the successors in interest of the deceased Husen Aba Bahadur who was the tenant in respect of land bearing R. S. No. 60/2-A, situate at Aurwad, taluka Hatkanangale, District Kolhapur. The petitioners predecessor was inducted as a tenant in the suit lands prior to the tillers day and was in possession thereof in that capacity. The suit lands were originally parts of joint family property of which original respondent No. 1 Sakharam Ganesh Pujari was a member. He was, at the relevant time, serving in the armed forces. It is the case of the respondents that he became the exclusive owner of the suit lands by virtue of a partition dated 29-11-1956 between his family members. It is relevant to note that deceased Sakharam retired from the armed forces on December 10, 1959. It is not in dispute that by Act 13 of 1956, persons who were serving members of the armed forces were treated as disabled landlords, and in such cases, by virtue of section 32-F, the right of tenant to purchase land on the tillers day stood postponed. It is also not in dispute that if that provision was to be made applicable, the deceased Sakharam who was disabled landlord could have exercised the right to resume the land by terminating the tenancy within one year of retiring from service which period ordinarily would have expired on December 10, 1960. However, the original respondent did not give such intimation or exercise that right. By virtue of section 32-F of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "act"), the original petitioner-tenant within one year therefrom could have given an intimation to purchase the suit land and failing to give such an intimation would have resulted in the purchase becoming ineffective, entitling the authorities to take recourse to section 32-P for resumption of the land. In the present case, however, the tenant continued to occupy the suit lands and whereas proceedings under section 32-G of the Act were initiated on the assumption that the tenant had become deemed purchaser on the tillers day i. e. on April 1, 1957. The tenancy authorities further proceeded on the assumption that the tenant was not willing to purchase the land and, therefore, initiated proceedings under section 32-P of the Act. In that proceedings, the tenant appeared and made a statement that he had no notice of the earlier 32-G proceedings. In other words, he resisted continuation of section 32-P proceedings against him. In the background of this objection, the Tahsildar, by an order dated August 11, 1965, dropped the said section 32-P proceedings and held that the provisions of sections 32 to 32-R were not applicable to the suit lands since the lands were owned by devasthan which is impleaded as respondent No. 2 in the present petition. What is relevant to mention at this stage is that before this order was passed by the Tahsildar, Chapter III-AA came to be introduced on October 20, 1964 by Maharashtra Act No. 9 of 1964. By the same Act, serving members of the armed forces who were earlier included in section 32-F came to be deleted and a separate provision in respect of members of the armed forces for termination of tenancy in respect of lands owned by them and for purchase of their lands by tenants came to be introduced. The title of this Chapter III-AA would fortify this position, which reads:--- SPECIAL PROVISION FOR TERMINATION OF TENANCY BY LANDLORDS WHO ARE OR HAVE BEEN SERVING MEMBERS OF THE ARMED FORCES; AND FOR PURCHASE OF THEIR LANDS BY TENANTS. "

(3.) BE that as it may, respondent No. 1 landlord being aggrieved by the order passed by the Tahsildar dropping section 32-P proceedings and also holding that the provisions of sections 32 to 32-R are not applicable to the suit lands as the lands were owned by the devasthan (respondent No. 2), preferred an appeal before the Sub-Divisional Officer, being Appeal No. 62 of 1968. The Appellate Authority, after considering the rival submissions, was of the view that the matter ought to be remanded to the first authority to examine; (i) whether the tenant had notice or note?; (ii) whether the landlord being a military personnel could get advantage of the amended provision (Chapter III-AA)?; and (iii) whether the entire income of the property was used for respondent No. 2 trust? Upon remand, the Tahsildar, by his order dated April 15, 1969, found that proceedings under section 32-G (3) of the Act were necessary. The Tahsildar further found that special provisions applicable to the trust property will have no application to the suit lands as the entire income derived from the suit lands was not used for respondent No. 2 trust. The Tahsildar, therefore, held that the provisions of sections 32 to 32-R would be applicable to the suit lands. The Tahsildar, however, found that the original respondent was the landlord and being a military personal, proceedings under section 32-G will have to be dropped. Against this decision, respondent No. 1 landlord went in appeal before the Sub-Divisional Officer, being Appeal No. 35 of 1970. The Appellate Authority by order dated October 23, 1971 once again remanded the matter to the first authority to examine; (i) whether the income from the suit lands was fully utilised for respondent No. 2 trust?; (ii) to make a further inquiry under section 32-G of the Act; and (iii) to consider the review application. At this stage, it is relevant to point out that the Appellate Authority has adverted to the fact that the petitioner tenant had made grievance that he was not served with any notice relating to section 32-G proceedings which were concluded against him earlier and the fact that he had sought for review of the said proceedings. After remand, the Tahsildar by order dated April 2, 1975 found that since the respondent landlord was a member of the armed forces, proceedings under section 32-G could not be proceeded with. Against this decision, the tenant preferred an appeal, being Appeal No. 254 of 1975 before the Sub-Divisional Officer. The Appellate Authority in turn found that section 32-G was available to the tenant and that proceedings ought to be examined and for which reason remanded the matter of the first authority to decide the same on merits. Against this decision, the respondent-landlord filed revision before the Tribunal, being Revision No. 38/76. The Tribunal by order dated June 8, 1977 held that the tenant did not receive an intimation of the proceedings under section 32-G of the Act and, therefore, the said proceedings which ended against the tenant were inappropriate and would not bind the tenant. Consequently, the Tribunal remanded the case to decide section 32-G proceedings on merits. On remand, once again the issue as to whether the land was devasthan land was framed by the authority. Another question which was framed by the authority was whether the tenant was willing to purchase the suit land and to fix the purchase price thereof. On remand, the Tahsildar, by order dated May 31, 1978, held that the tenant was willing to purchase the suit land and, therefore, determined the purchase price in respect of the suit lands at Rs. 5,570/ -. Against this decision, the respondent-landlord carried the matter in appeal, being Tenancy Appeal No. 3 of 1978. The Appellate Authority by order dated May 28, 1979 held that the suit land was trust property and, therefore, further observed that the provisions of sections 32 to 32-R were inapplicable to the suit lands. As a consequence of this finding, the Appellate Authority was pleased to set aside the order passed by the Tahsildar determining the purchase price of the suit land. Both the tenant as well as the landlord carried the matter in revision before the Maharashtra Revenue Tribunal. By order dated November 12, 1980, the Tribunal allowed both the revision applications and set aside the orders passed by the lower authorities and remanded the case for consideration afresh by further directing the trust (respondent No. 2 herein) to be made a party to the proceedings. As per the said remand order, the matter went back for a fresh inquiry before the Tahsildar and respondent No. 2 was impleaded as the opponent in the said proceedings. The Tahsildar after considering the material on record and rival submissions framed as many as six issues which read thus: (i) Whether the landlord proves that he is or has ceased to be serving member of the armed forces?; (ii) Whether the landlord proves that the suit land is not a Deosthan Inam land?; (iii) Whether the deceased tenant becomes deemed purchaser on 1-4-1957?; (iv) Whether the deceased tenant and afterwards his heirs had the right of purchaser of the suit land under the Tenancy Act?; (v) Whether the deceased tenant had given intimation to the landlord and the A. L. T. Shirol within one year from the date when the right of landlord to get possession had come to an end under section 43-1b?; (vi) What is the purchase price and what instalments are to be given?". The Tahsildar answered the above questions by recording the findings that respondent No. 1-landlord proves that he was and has ceased to be a serving member of the armed forces. As a necessary consequence of this finding, it was held that the provisions of Chapter III-AA of the Act would apply to the present proceedings. It was further held that the exemption under section 88-B of the Act does not apply to the present case since the income from the suit land was not being used for the purpose of respondent No. 2 trust. The Tahsildar further held that the deceased tenant did not become a deemed purchaser on April 1, 1957. This finding is on the assumption that the respondent-landlord being a member of the armed forces, the tillers date got postponed. The Tahsildar further held that the deceased-tenant and thereafter the heirs do not have the right of purchase the suit land under the provisions of the Act. The Tahsildar has held that the tenant had failed to give intimation to respondent No. 1 landlord and the Tribunal within one year from the date when the right of the landlord to get possession of the suit land had come to an end within the meaning of section 43-1b of the Act. As a consequence of this finding, the Tahsildar has held that the purchase had become ineffective and the tenant was not entitled to purchase the suit land and, therefore, there was no question of fixing the purchase price in respect of the suit land. Accordingly, since the purchase of the suit land had become ineffective, the Tahsildar directed initiation of proceedings under section 32-P of the Act. The petitioners herein carried the matter in appeal before the Special Land Acquisition Officer No. 14. Kolhapur, under section 74 of the Act. The Appellate Authority by his order dated February 27, 1984 held that the suit land was outside the purview of section 88-B of the Act as the income derived from the suit land was not fully utilised for respondent No. 2 trust. As a consequence of this finding, it is held that the provisions of sections 31 and 32 to 32-R would become applicable to the present case. The Appellate Authority further held that since the landlord failed to avail of the benefit conferred under section 31 of the Act of seeking possession of the suit land before December 10, 1960, the case was governed by the provisions of section 32 or 32-F of the Act. The Appellate Authority further held that the petitioner (deceased tenant) did not give intimation to the landlord or to the Tribunal of his desire to purchase the suit land within the prescribed period i. e. before December 10, 1961. The Appellate Authority further held that in the present case, however, the partition effected between the family members of the respondent No. 1 landlord was not in conformity with the requirements of the proviso to section 32-F (1) (a ). Consequently, the matter will have to be decided as if section 32 applied to the case on hand and the tenant has become deemed purchaser of the suit land on the tillers day i. e. 1-5-1957 under section 32 of the Act. The Appellate Authority further observed that since Chapter III-AA came into force with effect from October 20, 1964, and as it has only prospective application would not govern the fact situation of the present case where the rights between the parties got crystalised earlier on April 1, 1957. The Appellate Authority found that on that date, the relationship between the parties as landlord and tenant was snapped as the tenant became a deemed purchaser by operation of law. The Appellate Authority, accordingly, proceeded to fix the purchase price in respect of the suit land at Rs. 5950/- and directed the same to be paid in five instalments from June 1, 1984 to the holder of the trust. Being dissatisfied, respondent No. 1 landlord carried the matter in revision under section 76 of the Act before the Maharashtra Revenue Tribunal. The Tribunal by the impugned judgment dated August 2, 1988 has allowed the Revision Application and set aside the order passed by the Appellate Authority. The Tribunal has affirmed the finding recorded by the Tahsildar, inter alia, that the deceased tenant had not given intimation of his desire to purchase the suit land within the prescribed period to respondent No. 1 landlord and the Tribunal and, therefore, the purchase had become ineffective for which proceedings under section 32-P of the Act will have to be initiated. The Tribunal further observed that respondent No. 1 landlord was a serving member of the armed forces between December 13, 1955 and December 10, 1959 when he was given discharge. The Tribunal has also held that from the material on record, in particular the deposition of the tenant, it would appear that the tenant had accepted respondent No. 1 as the landlord and that he was a serving member of the armed forces. In the circumstances, the Tribunal held that it was obligatory on the tenant to exercise right of purchase of the suit land by giving intimation to the landlord and the Tribunal and having failed to do so, the purchase has become ineffective and, therefore, proceedings under section 32-P were inevitable. It is against this decision that the present writ petition has been filed by the tenant under Article 227 of the Constitution of India.