GANPAT KERABA KHOT Vs. DATTATRAYA NARAYAN JOSHI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been filed with a prayer for quashing and setting aside the judgement and order dated 26th March, 1980 passed by the Additional Tahsildar in an enquiry under section 32-P (1) read with section 32-F of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act", the order passed by the Sub-Divisional Officer, Karvir Division, Kolhapur in T. N. C. Appeal No. 116 of 1980 dated 24th March, 1982 and the order passed by the Maharashtra Revenue Tribunal, Kolhapur, hereinafter referred to as "the M. R. T. " in Revision Application No. M. R. T. KP. 56/82 dated 28th September, 1983.

(2.) BRIEFLY stated the facts leading to the filing of the present writ petition are that the land in dispute R. S. 211/3 admeasuring 1-30 was held by two landlords. One was Shri Kashinath Vishnu Joshi who was holding 0-9-7 share and the other was Smt. Radhabai wd/o Narayan Joshi who was holding 0-6-5 share. In the present writ petition we are only concerned with the share of Smt. Radhabai Joshi. She was admittedly a widow on 1-4-57. She was not a member of Kashinaths family. She was holding a distinct and definite share in the suit land. The tenant admitted that there was a separate lease with her and there existed a separate tenancy relationship between the petitioner and Radhabai. Since Radhabai was a widow on 1-4-57 the relevant proceedings had to be taken under section 32-F (1) (a) of the Act. However, unnecessarily proceedings under section 32-G of the Act were taken. The purchase of the tenant was declared to be ineffective as he failed to remain present at the enquiry. This order came to be passed by the A. L. T. on 31st July, 1962. The intimation of this order was given to the tenant on 14th November, 1972. On 23rd November, 1972 i. e. within 10 days from the receipt of the intimation the tenant exercised his rights for review as provided for under section 32-G (3) of the Act. No order was passed under the proviso to section 32-G (3) of the Act on this revision application. The A. L. T. went ahead with the 32-P enquiry and directed the restoration of possession of the suit land to the landlord by his order dated 1st August, 1975. This matter was carried in appeal by the tenant being Tenancy Appeal No. 404 of 1975. This was allowed by the Special Land Acquisition Officer by his order dated 2nd March, 1978. The matter was remanded back to the A. L. T. for deciding the matter on merits. The order passed by the Special Land Acquisition Officer was challenged in the M. R. T. in Revision Application No. M. R. T. KP. 246 of 78. This application was dismissed and the order passed by the S. L. A. O. was confirmed. The matter was taken up for hearing again by the A. L. T. and the order dated 26th March, 1980 has been passed. A perusal of the said order shows that the story put forward by the tenant with regard to his absence on the basis of which the order dated 31st July, 1962 has been passed was disbelieved. It is observed that in his deposition which was recorded on 14th November, 1972 the tenant had not given any reason for his absence. He had also informed the Court that he intended to go in appeal which in fact he did not do so. Thus it is observed that the pretext of illness seem to be an afterthought. Thus the review application was rejected. The A. L. T. observed that the review is rejected formally simply because the very basic order declaring the tenants purchase ineffective was without jurisdiction. It is held that since Radhabai was a widow on 1-4-57 the question of taking any proceedings under section 32-G of the Act did not arise. Thus since there was no valid enquiry under section 32-P there was no review also. Thereafter the trial Court observed that Radhabai died on 16th March, 1972. She has been succeeded by the present landlord under a registered Will No. 2441/21-5-69. His succession is noted by Mutation Entry No. 492/24-9-73. This has not been objected to by anybody. It is further held that it was obligatory on the part of the tenant to give the present landlord an intimation in the form prescribed under section 32-F (1-A) within two years i. e. before 24th September, 1975. He has not given such intimation till date. His deposition dated 14th November, 1972 and the application dated 23-11-72 also did not specifically indicate that he intended to purchase it. He simply suggested that he was going in appeal and asked for review. Thus it is held that since the right conferred on the petitioner was not exercised the purchase was liable to be declared ineffective. In view of the above, the order passed by the ex A. L. T. dated 1-8-75 has been confirmed. Apart from this, summary eviction of the petitioner under section 32-P (2) (c) has been ordered. Restoration of the possession of the suit land has also been ordered. Against the aforesaid order the petitioner filed Tenancy Appeal No. 1160 of 1980. This appeal also came to be dismissed on 24th March, 1982. Therein the argument put forward by the Counsel for the tenant to the effect that Radhabai was not a widow on 1-4-57 has been rejected. Since it is held that Radhabai was a widow on 1-4-57 the question of the tenant becoming a deemed purchaser on the said date is ruled out. The findings given by the trial Court have been confirmed. Against the aforesaid order the petitioner filed the revision application before the M. R. T. The M. R. T. also held that the tenant has not given an intimation of the willingness to purchase the land within time. Thereafter the tribunal directed that the revision is partly allowed and the orders of the trial Court and the Appellate Court have been upheld. However, it is directed that with regard to the land falling to the share of landlord Kashinath proceedings under section 32-G have to be continued.

(3.) COUNSEL for the petitioner has submitted that orders of all the three courts are nullity and without jurisdiction. It is submitted by the Counsel that there is no provision under the Act where the tenant is required to give an intimation of his intention to purchase. Rather, according to the Counsel, the intimation, if any, has to be given by the successor of the landlord. No such intimation has been given by the successor, therefore, the purchase of the petitioner could not have been declared to be ineffective. Counsel submits that the A. L. T. as well as the Collector had rightly held that the previous order dated 31st July, 1962 was without jurisdiction, thus the question of review also did not arise. Having come to this conclusion, all the courts have committed an error in holding that intimation had to be given by the petitioner within a period of 2 years of the death of Radhabai i. e. 16th March, 1973. For this submission the learned Counsel Mr. Patil has relied upon a judgement of this Court in the case of (Shrikrishna S. Horambale and others v. Shripad Jiwaji Apate and others) A. I. R. 1986 page 86. In the said judgement it is held that the purchase of the tenant does not become ineffective merely on the demise of the disabled landlord. It is also held that there is no provision which legally requires or obliges the tenant to give the successors in title of the deceased landlord, notice of intimation of willingness to purchase despite their such willingness already having been expressed to the late landlord himself in his own life time in proceedings under section 32 read with section 32-G of the Act. This authority, however, does not apply to the facts and circumstances of this case in that therein the intimation had been given by the tenant to the original landlord during his life time. Thus it was held that since section 31 (3) and section 32-F (1-B) include the expression "successor in title of a disabled landlord" then the intimation given to a disabled landlord during the period of his disability would also be binding on the successor in title. It is further submitted by the Counsel that the successor landlord had inherited the property by way of Will. If he could not be permitted to terminate the tenancy under section 31 of the Act then the purchase of the petitioner could not be declared to be ineffective. For his submissions Counsel has relied upon judgement of the Supreme Court in the case of (Dr. Tarakprasad Rajaram v. Smt. Vest Ukara (dead) by Lrs. and others) A. I. R. 1991 S. C. 1034. In this case the respondents were tenants of agricultural lands which had been let out to them by the appellants predecessors in title. The appellant made applications on behalf of minor Ashok Kumar for the eviction of the respondents on the ground that the agricultural land in dispute was bona fide required by the landlord for his personal cultivation. The appellant pleaded that the land in dispute had been bequeathed to him by his maternal grandmother under a Will and as such he was the landlord of the disputed land and entitled to maintain the application for eviction of the respondents under section 29 read with section 31-A of the Act. The tenants raised a preliminary objection to the maintainability of the suit on the ground that the appellant being a transferee of the land from his maternal grandmother was not entitled to maintain the land as a landlord under section 31 of the Act inasmuch as he had not inherited the property from his ancestors. The Mamlatdar upheld the preliminary objections and dismissed the eviction suit. The District Deputy Collector upheld the order of the Mamlatdar. The appellant preferred revision application before the Gujarat Revenue Tribunal at Ahmedabad but the same too was dismissed upholding the tenants objection. The appellant thereafter filed a writ petition under Article 227 of the Constitution of India before the High Court challenging the correctness of the view taken by the Revenue Courts. The High Court dismissed the writ petition on the finding that the view taken by the Revenue Courts in upholding the tenants objection to the maintainability of the eviction of the suit was correct. In these circumstances the appellant (landlord) had filed an appeal in the Supreme Court. The Supreme Court upheld the decision of the High Court and observed as follows in paragraphs 3 and 4. 3. There is no dispute that under section 31-A of the Act a landlord has a right to determine tenancy of agricultural land and to evict the tenant on fulfilling the conditions prescribed therein. The conditions prescribed are that if the landlord has no other land of his own and if he has not been cultivating personally any other land, he is entitled to take possession of the land let out to a tenant to the extent of permissible ceiling area. If the land cultivated by the landlord personally is less than the ceiling area he is entitled to take possession of so much area of land as would be sufficient to make up the area in his possession to the extent of ceiling area, further the income by the cultivation of the land of which he is entitled to take possession should be the principal source of income for his maintenance. These conditions as laid down in cls. (a) (b) and (c) of section 31-A of the Act must be satisfied for making an application for the eviction of a tenant from agricultural land. In addition to these conditions, cl. (d) further prescribes additional conditions which must also be fulfilled by the landlord. Section 31-A (d) as amended by the Gujarat Act No. XVI of 1960 reads as under :