JAGANNATH SAMBHAJI KARCHE Vs. CHANDU THAKU KAMBALE

JUDGEMENT

(1.) THE respondents were owners of the land S. No. 2/5 admeasuring 5 acres 12 gunthas situate at village Khamgaon, being Mahar Watan land of Inam Class VI-B under the Bombay Inferior Village Watans Abolition Act, 1958, hereinafter referred to as "watans Abolition Act". The Inam under dispute came to be abolished and resumed by the State with a effect from the appointed day viz. 1st August, 1958. The said lands were liable to be regranted to the authorised holder unless the same were found liable to be regranted to the authorised holder under section 6 or unauthorised holder under section 9 of the Watans Abolition Act. The said land came to be regranted to the respondents under the Watans Abolition Act on 25th May, 1963. On 10th October, 1972 the respondents entered into an agreement to sell the lands to the petitioner for a sum of Rs. 22,000/ -. A sum of Rs. 11,000/- out of the total amount of Rs. 22,000/- was paid by the petitioner to the respondents under a receipt. It is not disputed that the petitioner was put in possession of the land by the respondents on 6th April, 1957, after accepting 5 years rent and agreeing in writing to permit him to cultivate the land as tenant for 5 years. After entering into the agreement to sell, the respondents made an application to the Collector under section 3 (1) (c) of the Watans Abolition Act for a declaration that the petitioner was an unauthorised holder of the land in dispute. The Sub-Divisional Officer who heard the said application by his order dated 30th August, 1970 accepted the claim of the respondents and held that the petitioner was unauthorised holder within the meaning of section 2 (1) (x) of the Watans Abolition Act. The petitioner thereafter went in appeal before the Commissioner. The said appeal was heard by the Additional Commissioner. The appeal came to be dismissed by order dated 18th April, 1977. The Commissioner also exercised his suo motu revisional powers and cancelled the order of regrant in favour of the respondents dated 25th May, 1963. This order came to be challenged by the petitioner in (Special Civil Application No. 1232 of 1977. A Division Bench of this Court by judgment dated 19th June, 1978)1 held that the petitioner was not an unauthorised holder of the land on any count whatsoever. The finding of the Commissioner as to the liability of the regrant order was cancelled being not sustainable. The Division Bench also observed".

(2.) COUNSEL for the petitioner, Mr. Rane, has made a number of submissions which may be noticed. First and foremost, it is submitted, that the Tribunal has erred in law in not considering the findings given by this Court in its judgement dated 19th June, 1978. This Court had categorically held that the provisions of the Tenancy Act would be applicable. The land in question would not be exempted because of the provisions of section 88 (1) (a) read with explanation thereto. It has been further held that the question of attracting this exemption from the Tenancy Act will not arise unless it is shown that the watan in dispute was for a service useful to the Government and secondly that it was assigned as remuneration to the person actually performing such service. It was further held that the Court is unable to see any reason to hold that the lease in favour of the petitioner by the respondents was void or not lawful in any manner whatsoever. If the lease is not hit by any provision of any enactment, the same shall be deemed to have been lawful and it cannot be held that the petitioner was unauthorised holder of the land on any count whatsoever. The petitioners case has been held to be clearly covered by section 8 of the Act as the lease created in favour of the petitioner was perfectly lawful and the same was subsisting on the appointed day i. e. 1-8-1959. It is further submitted that the Tribunal erred in law that provisions of section 32-O of the Tenancy Act are applicable and that the petitioner has failed to exercise his right within a stipulated period of one year from 6th April, 1957. It has wrongly been held by the Tribunal that by virtue of the order of the Tahsildar, purchase of the suit land has been declared as ineffective although it is not so stated in express words. It is further submitted that the Tribunal has failed to exercise its jurisdiction in not considering that the provisions of the Tenancy Act would apply by virtue of section 8 of the Watans Abolition Act. Therefore, provisions of the Tenancy Act would apply with effect from the appointed day which is 1-8-1959. Further the provisions of Tenancy Act would apply subject to the provisions of the Watans Abolition Act. Thus, if any of the provisions of the Tenancy Act are in consistent with the provisions of the Watans Abolition Act, then the provisions of Watans Abolition Act would be applicable. The Tribunal held that : from perusal of the facts on record it is abundantly clear that the suit land which was a matar watan land of Class VI-B has been converted into a rayatwari tenure land, as a result of the passing of the Abolition Act on 1-8-58 and that by virtue of section 8 of the Abolition Act, the provisions of the Tenancy Act have been made applicable to it. In other words, the lease of the land in suit which was created in favour of the opponent on 6-4-57 prior to the coming into force of the Abolition Act continued thereafter and came to be governed by the Tenancy Act. It is undisputed that the lease was created after the Tillers" day i. e. 1-4-57. It is also in evidence that the lease agreement was passed whereby the opponent tenant was to cultivate the suit land as such on payment of rent of Rs. 30/- per annum upto the year 1963. Thus, the contractual tenancy which was already in existence prior to the Abolition of the watan continued thereafter on the application of the Tenancy Law. The learned Advocate Shri Avhads submission that the right of purchase would accrue to the opponent tenant on the date of the regrant order cannot, therefore, be accepted. Had there been a lease created prior to 1-4-57, then it could have been rightly held that the opponent became a deemed purchaser of the land in suit, if not on 1-4--57, then, on the date of which the order of regrant was made. This is not the position here. The date of commencement of Tenancy has remained unquestioned, being after the Tillers day i. e. 1-4-57. If so, the provisions of section 32-O must be pressed into service. " by virtue of section 88 (1) (a) read with the explanation thereto of the Tenancy Act, the provisions of the Tenancy Act would not apply. The Tribunal has misconstrued the observations of the High Court in the earlier judgement to the effect that the provisions of the Tenancy Act would be applicable. It is submitted that the observations of the High Court were to the effect that provisions of the Tenancy Act would be applicable in view of section 8 of the Watans Abolition Act. This Court having held that the case of the petitioner is squarely covered by section 8 of the Watans Abolition Act, the petitioner would be entitled to the regrant of the Watan lands under section 6 of the Watans Abolition Act. This Court has categorically held while rejecting the application of the respondents under section 3 (1) (c) of the Watans Abolition Act that the petitioner is not an unauthorised holder. It is then submitted by Mr. Rane that under the provisions of the Watans Abolition Act a person can only be authorised holder of watan land which has been given as an inam to a watandar. Watan property under the Act is defined the movable or immovable property held, acquired or assigned under the existing Watan law for providing remuneration for the performance of the duty appertaining to an inferior village hereditary office. Admittedly the land in question is mahar watan. According to the Counsel that this Court in its order and judgment dated 19th June, 1978 had observed that the provisions of the Tenancy Act would apply only to clarify that the exemption under section 88 (1) (a) read with the explanation, of the Tenancy Act, would not be attracted. That section and the explanation provides that nothing in the foregoing provisions of the Act shall apply to land belonging to or held on lease from the Government. The explanation states for the purposes of Clause (a) of sub-section (1) of this section, land held as inam or watan for service useful to Government and assigned as remuneration to the person actually performing such service for the time being under section 23 of the Bombay Hereditary Offices Act, 1874, or any other law for the time being in force shall be deemed to be the land belonging to Government. It was held by this Court that there is no question of attracting the exemption of the Tenancy Act unless it is shown that the watan in dispute was for a service useful to the Government and assigned as remuneration to the person actually performing such service. In view of this it was held that the land does not attract the provisions of section 88 (1) (a) read with explanation thereto and cannot be said to have been exempted from the operation of the Tenancy Act. In view of the fact that the Division Bench has also restored regrant to the respondents, Mr. Rane has submitted that the petitioner would be entitled to the purchase of the lands under the provisions of the Tenancy Act. It is submitted that undisputably lease in favour of petitioner was created and the petitioner was put in possession of the land w. e. f. 6th April, 1957. The Tillers day as defined under the Tenancy Act is 1st April, 1957. The appointed date under the Watans Abolition Act is 1st August, 1959. Admittedly the lease was subsisting till 1963. Admittedly also the respondents had agreed to sell the lands to the petitioner in 1972 for a consideration of Rs. 22,000/ -. The provisions of the Tenancy Act came to be applied to the watan lands by virtue of section 8 w. e. f. 1st August, 1959. It is, therefore, submitted by the Counsel for the petitioner that the relevant date for the purpose of purchase of the suit lands would be the date of regrant i. e. 25-5-1963. Therefore, the Tribunal has committed an error of law in holding that the petitioner is disentitled from any relief in view of the fact that he did not exercise his right under section 32-O within the stipulated period. The said lease which was granted on 6th April, 1957 subsisted on the appointed date. This has been held to be a valid lease by the Division Bench. No fresh lease was executed by the respondents after 1-8-59 being the appointed date under the Watans Abolition Act. Prior to the appointed date i. e. 1-8-59 tenancy laws were not applicable to watan lands. In view of section 32-G (6) the Tillers day 1-4-57 is to be read as 25-5-63. The title automatically passed to the petitioner on 25-5-63. Lease was created on 6-4-57. Thus the petitioner is in the same position as the tenant of non-watan land, having valid tenancy in his favour prior to the Tillers day viz. 1-4-1957. Having held that the provisions of the Tenancy Act apply, the Tribunal failed to exercise its jurisdiction in not recognising the title of the petitioner by virtue of section 32-G (6 ). It is further submitted that section 32-G provides that the Tribunal shall give a public notice to all tenants who under section 32 are deemed to have purchased the lands. The Tribunal is duty bound to record the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. It is only on the failure of the tenant to appear or make a statement before the Tribunal, that he is not willing to purchase the lands, that the Tribunal has the power to declare that the purchase is ineffect. It is, therefore, submitted by Mr. Rane that it was incumbent on the Tribunal to issue the requisite notice. No such notice was issued. In view of the above, it is submitted that the petitioner is the deemed owner of the land. He is deemed to have purchased the same w. e. f. 25-5-63.

(3.) MR. Anturkar, learned Counsel appearing for the respondents, on the other hand has submitted that the writ petition deserves to be dismissed at the threshold for delay and laches on the part of the petitioner. It is also submitted that the writ petition deserves to be dismissed on the principles of constructive res judicata and also in view of Order 2, Rule 2 of the Civil Procedure Code. To make good the submissions the Counsel has submitted that the order dated 23rd May, 1963 regranting the land to the respondents has not been challenged by the petitioner till date. The regrant has been upheld by the Division Bench. Thus, it would not lie in the mouth of the petitioner to say that the land ought to be regranted to him. The submissions which are made by the Counsel ought to have been made in the earlier proceedings. No such submissions have been made. Thus they cannot be permitted to raise these points at this stage for the first time. Admittedly, according to the Counsel, lease was granted to the petitioner on 6th April, 1957. The application under section 3 (1) (c) was made in 1974. None of the pleas which have been raised now were raised therein. Order of regrant was cancelled by the Tribunal in its order dated 18th April, 1977. Inspite of this, no plea whatsoever has been raised in the writ petition that the cancellation of the regrant in favour of the respondents was correctly made by the Tribunal. There is also no prayer to the effect that the land ought to be granted in favour of the petitioner. The petitioner has suffered the wrong order for such a long time. He cannot now be permitted to re-agitate the same. Even under Article 100 of the Limitation Act the petitioner would have to take out necessary proceedings within a period of one year. By virtue of section 8 of the Watan Abolition Act, the petitioner had gained a right of regrant of the land under section 6 with effect from 1st August, 1959. The petitioner made no such claim. He has rather defended the order of regrant in favour of the respondents. In any event even if by virtue of section 8, the petitioner would be entitled to regrant of the land under section 6 of the Watan Abolition Act, in view of the order of the Division Bench the petitioner can make no such claim. The land cannot be regranted to the landlord as well as the tenant.