KHASHABA DADU BORATE Vs. YESHWANT DADU BORATE

JUDGEMENT

(1.) THE question involved in this petition is whether the landlady widow Saraswatibai, mother of Respondent No. 3, could initiate proceedings under Section 32G of Bombay Tenancy and Agricultural Lands Act. 1948 (Short for B.T. and A.L. Act) and whether the Petitioner alone or Petitioner and Respondent Nos. 1 and 2 are all tenants of those lands.

(2.) THE Landlady, Saraswatibai initiated proceedings under Section 32G of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as Bombay Tenancy Act). The Petitioner claimed to be the exclusive tenant of those lands and entitled to purchase while it was contended on behalf of the Respondent Nos. 1 and 2 that they were also tenants along with the Petitioner and entitled for 1/3rd share. The learned Additional Tahasildar and A.L.T. held that the Petitioner and Respondent Nos. 1 and 2 were tenants and fixed the price by order dated 1.4.1978. The said order came to be challenged on behalf of the Petitioner and in appeal Special Land Acquisition Officer No. 3 held that the Petitioner alone was the tenant. The said order dated 18 -9 -1978 came to be challenged on behalf of Respondent Nos. 1 and 2 and the learned Member of Maharashtra Revenue Tribunal by order dated 17 -11 -1983 held that the Proceedings under Section 32G of the Bombay Tenancy Act initiated at the instance of the original landlady a nullity. However, as she died on 25.2.1974 i.e. during the pendency of the proceedings he directed fresh proceedings should be initiated under Section 32F of the Bombay Tenancy Act. The said order dated 8.4.1985 is under challenge in this petition.

(3.) THE learned Counsel appearing for the Petitioner first submits that learned Member of M.R.T. has committed an error in holding that the application filed on behalf of widow landlady under Section 32G was not maintainable. He submits that landlady widow was having a right to initiate the proceedings under Section 32G and such a right cannot be said to have been taken away by any of the provisions of Bombay Tenancy Act. In support of his contention he has relied upon two judgments of Division Benches of this Court reported in i) Bai Jiviben v. Bombay Revenue Tribunal 61 B.L.R 1475 and ii) Nago Dattu Mahajan v. Smt. Yashudabai 61 B.L.R 475. In the case of Bai Jiviben (cited supra) it came to be held that Sub -section 1 of Section 31 gives a right to every landlord to terminate the tenancy of the land if he requires the same bona fides for personal cultivation. It was held that there is nothing in this sub -section which states that this right shall not be available to a widow or that it cannot be exercised by her. Section 31(1) gives a similar right to the widow as in the case of any other landlord. Section 31(3) gives right to successor in interest but it does not in any way restrict the rights which the widow herself possesses. In the case of Nago Dutta (Cited supra) the question arose whether both the provision i.e. Section 31(1) and Section 31(iii) can be availed or not. It was held that Section 31(3) is an enabling provision designed for the benefit of disabled landlords such as widows etc. It was further observed as follows.Such landlord thus have a choice to avail of either of these two provisions for resumption, i.e. Section 31(1) of Section 31(3), exercise of which depending on the circumstances in which each of them finds himself. No landlord, however, can avail of both the provisions, Section 31 having been designed to afford only one last opportunity of resumption. Any such landlord thus cannot seek resumption under Section 31(3) again if he or she has availed of the right under Section 31(1). A widow landlady possesses right which are possessed by any other landlord and they are not taken away by any of the provisions. Expression widow only represents the physical state of landlady. It was nothing to do with her rights which a landlady possesses in respect of the lands. If a landlady became a widow prior to 1.4.1957, then she is a widow for the purpose of Bombay Tenancy Act. There is nothing in the Act which takes away her right to make an application under Section 32G for fixation of price and sell the land under Bombay Tenancy Act to a tenant. Section 31(3) makes a special provision for a disabled landlord like a widow. But other rights as a landlord are preserved. There is no embargo on her right to initiate the proceedings under Section 32G of B.T. and A.L. Act. Therefore, the learned Member was not right in holding that the proceeding under Section 32G were nullity as they were initiated by the widow landlady.