SHANKAR YESHWANT KADAM Vs. KHASHABA NANA NIMBALKAR

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been filed with a prayer that the orders passed by the Tenancy Aval Karkun, Satara in Tenancy Case No. 58 of 75 dated 30th November, 1977, the order in Appeal passed by the Sub-Divisional Officer, Satara Division, Satara in No. TNC 71/78 dated 27th November 1981 and the order passed in Revision No. M. R. T. NS. IX. 1/82 (TEN. B. 264/ (2) Pune passed by the Maharashtra Revenue Tribunal dated 13th December, 1983 be quashed and the original application for restoration of possession of the suit lands filed by the petition be granted with costs throughout.

(2.) THE dispute in this petition relates to the following agricultural lands situate at village Kondave, Tal. Satara in Satara District, hereinafter referred to as "the suit lands. "

(3.) COUNSEL for the petitioner has submitted that even now there is a relationship of landlord and tenant between the petitioner and the respondent. It is submitted that Chapter III-AA was inserted in the Act by Maharashtra Act 39 of 1964. It is submitted that by virtue of this Chapter special provisions were made for termination of tenancy by landlord who are, or have been serving members of the Armed Forces; and for purchase of their lands by tenants. Counsel submits that all the three courts below have failed to take notice of the provisions of the Chapter III-AA of the Act. According to him, a very important change has been effected on the rights of a tenant to purchase agricultural lands of which military personnel are the landlords. In view of the provisions of section 43 (1-A) the respondent cannot be deemed to have purchased the suit lands on 1-4-1957. Even if the respondent had a right to purchase the suit lands on 1-4-57 yet the purchase would not be a complete purchase till all the proceedings under section 32-G to 32-R have been completed. Admittedly, in the present case the proceedings under section 32-G of the Act are still pending as they were postponed in view of the fact that the petitioner was a military personnel. Thus it is submitted that there is no effective purchase or effective sale of the land between the petitioner and the tenant on the Tillers day or the alternative period prescribed in that behalf until certain conditions are fulfilled. It is submitted that the right of the respondent is only an incohate right to purchase the land which can be perfected on a statement being made by him before the Tribunal that he is willing to purchase the land. It is further submitted that even if the statement is made by the respondent, the suit land does not vest in him. It is only on the payment of the purchase price can he get the certificate of purchase from the Tribunal. Thus it is submitted that the provisions of section 32 do not vest the title of the land in the respondent. This title can only vest in the respondent subject to the provisions of sections 32-G to 32-R. In other words, it is the submission of the Counsel that till the price is finally paid and the certificate of purchase is issued the rights of the petitioner are merely suspended. That being the position it is submitted that all the courts below committed an error of jurisdiction in holding that there was no relationship of landlord and tenant between the petitioner and the respondent. To buttress his argument he has relied on provisions of sections 31 (1), 31 (3) and 32-F of the Act. On the basis of these provisions it is submitted that the landlords right to terminate the tenancy can be postponed. In view of these sections the right to purchase by the tenant only accrues when the disability of the landlord is removed. Thus it is submitted that the date 1-4-57 is not a fixed date and the right to purchase can be postponed to correspond with the right of landlord to terminate the tenancy. It is submitted that by virtue of section 43 (1-A) the definition of landlord as on 1-4-57 has also undergone a modification. After the amendment an Army Personnel would become a landlord on 1-4-57 so long he was in the army on the date when the amendment came into operation i. e. 20th October, 1964. In the present case the petitioner had joined the Army on 1-7-62 and, therefore, he became the landlord on 1-4-57. Even otherwise Counsel reiterates that section 32 is subject to other provisions of the Act. All tenants are not deemed purchasers. Section 32-F is an exception. Similarly Chapter III-A is an exception. The purpose of inserting Chapter III-A was to give an additional right to the military personnel which they had already enjoyed under section 32-F of the Act. On the coming into operation of the amendment the rights of a military personnel guaranteed under section 32-F have been extinguished. Section 32-F dealt with rights of disabled landlords such as minors, widows and persons subject to any mental or physical disability. The fourth category of disabled landlords was serving members of the armed forces. This category has been deleted by the amendment. Their rights have been guaranteed by provisions of sections 43 (1-A) (1-B) (1-C) and (1-D) of the Act. It is, therefore, submitted that in order to effectuate the purpose of the amendment section 43 (1-A) has to be interpreted to mean that the petitioner became a landlord on 1-4-57. Counsel then points out that under section 88-C of the Act certain exemptions had been made in favour of the certificated landlords. It is further submitted that 1-4-57 cannot be said to be a fixed date for other reasons also. Giving an example it is submitted that landlord could regain possession by making an application under sections 29 and 31 of the Act. Under section 31 (2) of the Act the landlord was required to give a notice of termination to the tenants before 31st December, 1956. Thereafter an application for possession under section 29 of the Act was to be made to the Mamlatdar on or before 31st March, 1957. Even if such applications had been made the same could not have been decided before 1st April, 1957. Consequently to say that all tenants who fulfilled the conditions under section 32 of the Act became deemed purchasers on 1-4-57 would lead to an anomalous situation. On provision of section 43 (1-E) being pointed out by the Court the Counsel submitted that provisions of section 43 (1-E) would not affect the right of the petitioner under section 43 (1-A ). It is submitted that provisions of section 43 (1-E) would only apply in the case of a complete and effective purchase. In the present case the proceedings under section 32-G are still pending and, therefore, section 43 (1-E) would not apply. In support of these arguments, Counsel has placed strong reliance on a Division Bench judgment of this Court in the case of (Bhimrao Tatoba Sawant and another v. Heramb Anant Patwardhan and others) A. I. R. 1986 Bombay 408. It is submitted that the facts of the said case are identical to the facts of the present case. The very same provisions viz. Section 43 (1-E) were under the consideration of this Court. After considering all the arguments, this Court has held as follows :--