BAJIRAO JAISINGRAO GHADAGE Vs. RAJARAM YESHWANT CHOUGULE

JUDGEMENT

(1.) THIS Common Judgment will dispose of all the companion writ petitions, for the question involved is common between the parties. The respondent in the respective writ petition claim to be permanent tenants in respect of the land occupied by them, which were originally Inam land of Class V. Inam was abolished and the land came to be regranted to the predecessor of the petitioner prior to Tillers' Day, i. e. 1st April, 1957. In other words, the predecessor of the petitioner, Smt. Saraswatibai wife of Kedarrao ghadage, was the occupant landlady of suit land and was widow on the Tillers' day, who, later on, died in the year, 1975. As the predecessor of the petitioner was widow on the Tillers' Day, the proceedings in respect of the suit lands under section 32g of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act")* which had commenced before the A. L. T.-1, tasgaon, were postponed on 8th May, 1961. Accordingly, after the death of predecessor of the petitioner, the landlady, proceedings under section 32f of the act were commenced. The Additional Tahsildar and A. L. T.-l, Tasgaon, by his judgment and order dated 31st May, 1982 took the view that the respondents-Tenants had failed to exercise right of purchase within the specified time by giving notice to the landlady in terms of section 32f of the Act, for which reason, sale of suit lands in their favour had become ineffective. This view found favour with the appellate authority, where the respondent in the respective writ petitions, had preferred appeals, before the Sub-Divisional Officer. The appellate authority dismissed the appeals preferred by the said respondents by common judgment dated 25th November, 1983. Against this decision, the respondent in the respective writ petitions preferred revision application before the Maharashtra revenue Tribunal, which was, however, allowed by judgment and order dated 30th April, 1985 by the Tribunal. The Tribunal, in substance, held that section 32f of the Act has no application to the case on hand. It has found that as the respondent in the respective writ petitions were permanent tenants in the suit lands, they would become purchasers on the Tillers' Day, i. e. 1st April, 1957 irrespective of whether the landlady was widow on the relevant date. It is held that section 32f of the Act applies only in cases where the landlord/landlady is entitled to terminate the tenancy under section 31 of the Act. Insofar as the permanent tenants are concerned, section 31 of the Act cannot be invoked by the landlord or the landlady, as the case be, in view of express provision to exclude the application of section 31 to such tenants (permanent tenants ). Accordingly, the Tribunal found that as section 32f of the Act has no application, the fact that the respondents had failed to send intimation to the landlord within the specified time as provided in the said provision will make no difference. On the other hand, the respondents will have to be held to have become deemed purchasers on the Tillers' Day, 1st April, 1957, by virtue of section 32 of the Act. Taking this view of the matter, the Tribunal, while allowing the revision application and setting aside the orders passed by the two Courts below, remanded the matter to the trial Court for fixing purchase price of the suit lands under section 32g of the act as on 1st April, 1957. This decision is the subject-matter of challenge in the present petitions.

(2.) THE core issue that needs to be addressed in the present matter is : whether section 32f of the Act has application to lands held by permanent tenants.

(3.) THESE petitions were originally filed by Mr. D. R. Ajgaonkar, Advocate, on instructions of the High Court Legal Services Committee, Mumbai. When the petitions were taken up for hearing on June 8, 2004, Mr. Ajgaonkar informed that he has conveyed his inability to appear in the matters to the High Court Legal services Committee as back as in 2000, but no arrangement was made. In the circumstances, hearing of petitions was deferred. In the meantime, Mr. A. H. Palekar was requested to appear, so as to espouse the cause of the petitioners. In addition to Mr. Palekar, Mr. S. G. Karandikar also addressed the Court as amicus curiae. According to the Counsel espousing the cause of the petitioners, the view taken by the Tribunal was inappropriate. It was, however, submitted that the tribunal has completely glossed over the purport of section 32f of the Act, which opens with non-obstante clause and overrides the provisions of preceding sections of the Act. It was submitted that section 32f of the Act makes no distinction between an ordinary tenant and a permanent tenant, whereas refers to tenant generally. It was argued that expression "tenant" has been defined in section 2 (18) of the Act, which includes a "permanent tenant" as defined in section 2 (10a) of the Act. It was argued that the fact that remedy under section 31 of the Act is not available to the landlord against the permanent tenant was not the decisive factor, but the provision of section 32f (l) (a) of the Act, which we are concerned, has been introduced to protect the right of the landlord, who was minor, widow or a disabled person on the Tillers' Day. It was argued that if the construction putforth by the Tribunal and as canvassed by the respondents was to be accepted, that would result in re-writing of the provision such as section 32f of the Act which was impermissible. It was argued that any other construction would result in whittling down the mandate of section 32f of the Act. To support the argument about the scope of section 32f of the Act, reliance was placed on the decisions of the Apex Court reported in AIR 1995 SC 2164 in the case of anna Bhau Magdum (since deceased by LRs.) vs. Babasaheb Anandrao Desai; and in 7966 Mh. LJ. (SC) 475 = AIR 1965 SC 1457 in the case of Patel Chunibhai dajibha, etc. vs. Narayanrao Khanderao Jambekar and another. Reliance was also placed on the decision of Full Bench of our High Court reported in 7972 Mh. LJ. (F. B.) 124 = 1971 (Vol. LXXIII) BLR 792 in the case of Vishnu Shantaram Desai vs. Smt. Indira Anant Patkar and in the case of Ramchandra Anant Joshi vs. Janardan Tulshiram Ghuge, 1962 NLJ 700 = (1962) LXIV BLR 635.