TATOBA BHAU SAVAGAVE Vs. VASANTRAO DHINDIRAJ DESHPANDE

JUDGEMENT

(1.) THIS petition by the tenants involves a neat question of law as to the interpretation of the provisions of S. 43-1 B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Tenancy Act" ). In particular, the question involved is whether for calculating the ceiling area for the purpose of clause (a) of sub-s. (1) of S. 43 -1b of the Tenancy Act, any land in actual possession of the landlord outside the State of Maharashtra can be taken into account. The contention of the petitioners tenants is that the land in actual possession of the landlord, though such lend may be situated outside the State of Maharashtra should be considered while calculating the ceiling area. The contention of the contesting respondent No. 1-landlord, obviously, is that such a land in his possession outside the State of Maharashtra should not be calculated in his holding for the purpose of determining the ceiling area under clause (a) of sub-sec. (1) of S. 43-1b of the Tenancy Act. A few facts may be stated as. under :

(2.) THE first respondent-Vasantrao was the member of the Armed Forces from 1941 to 1970. His father Dhundiraj Deshpande was the original landlord of two lands, survey No. 98 measuring 18 acres 27 gunthas and survey No. 99 measuring 17 Acres and 17 gunthas both situated at Rajapur, Taluka Shirol, District Kolhapur. The original land?lord died in 1936 leaving three sons - ?respondent No. 1 - Vasantrao, original respondent No. 7 Chandrashekhar and res?pondent No. 8 - Suryakant. It appears that in the year 1944, there was a partition in the family and as far as survey No. 99 was concerned, each of the three sons was given 1/3rd share. As far as other land bearing survey No. 98 is concerned, it was equally divided between Chandrashekhar and Surya?kant. In the year 1964, the share of the present respondent No. 1 Vasantrao, who is the member of the armed forces, was sought to be enlarged by transfer of 1/2 share of Chandrashekhar in survey No. 98 and 1/3 rd share of Chandrashekhar in survey No. 99. Thereafter Vasantrao filed an application u/s. 43-1b of the Tenancy Act for possession of his 1/2 share in survey No. 98 and 2/3rd share in survey No. 99. (Vasantrao's lands which, included the share which was transferred by Chandrashekhar to Vasantrao ). This was on the basis that the first respondent Vasantrao had acquired the share of Chandrashekhar in both surveys Nos. 98 and 99. This application was tried as tenancy case No. 1 of 1968. The Collector, Kolhapur dismissed the said application by his order dated 22/09/1970. While dismissing the application, the Collector held that in view of the provisions contended in S. 32f of the Tenancy Act and in view of the fact that share of respondent No. 1 who was the member of the joint family, had not been separated by metes and bounds, the tenant had become deemed purchaser of the suit land. This order of the Collector was challenged by respondent No. 1 Vasantrao in Revision before the Commissioner, Pune Division, Pune. The Additional Commis?sioner partly allowed the Revision Applica?tion by his judgment and order dated 30/11/1974. He took the view that the partition had already taken place prior to the insertion of S. 32f in the Tenancy Act and hence the question of applicability of that Section to the facts of the case did not arise at all. He, however, held that the transfer of the share of Chandrashekhar in both the lands in favour of the present respondent No. 1 Vasantrao could not be given effect to because the land standing to the share of Chandrashekhar had already been subject matter of the statutory purchase in favour of, the tenant. The Additional Commissioner therefore, allowed the claim of respondent No. 1 Vasantrao only to the extent of his 1/3rd share in survey No. 99 which was his holding prior to the purported transfer of' 1964 by Chandrashekhar.

(3.) THIS order passed by the Additional Commissioner granting the application of respondent No. 1 Vasantrao to the extent of his 1/3rd share in survey No. 99 was chal?lenged by the tenants in this Court in Writ Petition No. 744 of 1975 which was finally disposed of on 3/07/1979. This Court took the view that the finding of the Additional Commissioner regarding the total holding of respondent No. 1 Vasantrao was unsatis?factory. In order that the landord who is the member of the Armed Forces succeeds in obtaining the possession of the land, it is necessary to show that the total land in his actual possession is less than the ceiling area. The extent of the land which such a landlord can obtain u/s. 43-1b is only so much as would make up the total land in his actual possession equal to the ceiling area. This is clear from the perusal of S. 43-1b of the Tenancy Act, which reads as under : 43-1 B : (1) Notwithstanding anything contained in the foregoing provisions of this Act, but subject to the provisions of this Section, it shall be lawful to a landlord at any time after the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1964, to terminate the tenancy of any land and obtain possession thereof, but (a) of so much of such land as will be sufficient to make up the total land in this actual possession equal to the ceiling area; and (b) where the landlord is a member of a joint family, only to the extent of his share in the land (not exceeding the ceiling area) held by the joint family provided that, the Mamlatdar on inquiry is satisfied that such share has (regard being had to the area, assessment, classification and value of land), been separated by metes and bounds in the same proportion as his share in the entire joint family property and not in a larger propor?tion. (2) No tenancy of any land shall be terminated under sub-sec. (1), unless a notice in writing is given to the tenant, and an application for possession under sub-sec. (3-A) of S. 29 is made to the Collector : Provided that in the case of a landlord who has ceased to be a serving member of the armed forces, such notice shall be given and application made within two years from the date of such cesser; and if he dies before the expiry of these two years without giving such notice or making such application, then with?in two years from the date of his death. (3) Nothing in this Chapter shall - (a) apply to a tenancy of land created (after obtaining possession thereof under the provi?sions of this Chapter) by a landlord who has ceased to be a serving member of the armed forces; but the provisions of S. 32-0 shall apply to such tenancy as they apply in relation to a tenancy created after the tillers day; (b) entitle a landlord who has ceased to be a serving member of the armed forces (as a result of his being duly dismissed or dis?charged after a court martial or on account of bad character or as a result of desertion) or who has not been attested, to terminate the tenancy of his land under this Section. (4) Nothing in the Bombay Prevention of Fragmentation and Consolidation of Hold?ings Act, 1947, shall affect the termination of any tenancy under this Chapter. In view of this lacuna in the decision of the Additional Commissioner, this Court thought it necessary to remand the matter back to the Court of the first instance for deciding the question of the extent of the land held by the first respondent in his actual possession and consequently the extent of the land which he is entitled to resume from the tenants namely the petitioners and to what extent. In the result this Court partly allowed the Writ Petition and held that the first respondent Vasantrao was entitled to apply u/s. 43-1b of the Tenancy Act for possession of his 1/3rd share in survey No. 99 subject to the finding as to his holding on which issue the matter was remanded.