JAIKISAN BIHARILAL Vs. BUDHAJI NAGOJI

JUDGEMENT

(1.) THE petitioner is the son of one Biharilal and claims to have become the owner of field survey number 24/2, area 21 acres, 26 gunthas of mouza Balkhed, Taluq Pusad, district Yeotmal, as a result of a partition which had taken place; on February 4, 1961. Long before this partition, the respondent who was a tenant of this field had served a notice on the original owner Biharilal exercising his right of purchase and making an offer to him for purchasing the land. Biharilal did not take any action under the proviso to Section 40 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act. Under this proviso a landlord could within 8 months from the date of the receipt of the offer made to him by the tenant under Section 43 of the Act select the land for cultivating personally and he had to give an intimation in writing to the tenant of his intention to terminate the tenancy. On August 22, 1960 the respondent applied to the Agricultural Lands Tribunal for determination of the purchase price because the landlord had not accepted the offer. This application was fixed for final order on February 25, 1961. Till that date Biharilal did not disclose the fact of the alleged partition. The petitioner's counsel now informs that on the date on which the case was fixed for orders, that is February 25, 1961, the petitioner had applied to the Tribunal for being permitted to be joined as a party to the proceedings, but this application was rejected. It is not disputed that the petitioner did not proceed ahead to challenge the order passed on February 25, 1961 by which the price payable by the respondent was determined nor did he challenge the order refusing him to be allowed to be joined as a party. Instead, the petitioner's father Biharilal alone filed an appeal before the Special Deputy Collector.

(2.) THIS appeal was firstly held to be delayed but the delay was condoned and the Deputy Collector had observed that the application, of Jaikisan was rejected by the Tahsildar as it was filed after the order was passed. The Deputy Collector held that since the appellant Biharilal before him did not take any action as provided within the time prescribed by Section 40 of the Act, he had lost the opportunity to resume the land. The Deputy Collector further held that since the right to purchase the land had become operative against Biharilal it could not be negatived by bringing about a partition. Thus since the offer was made to the landlord who was recorded as the owner, the Deputy Collector declined to interfere with the order of the Agricultural Lands Tribunal.

(3.) THE matter was, however, remanded back to the Tribunal by this Court for disposal according to law. When the revision application was re -heard, the Tribunal found that the respondent had been declared to be a statutory owner on July 18, 1965, but observed that when the Tribunal had disposed of the earlier revision application arising out of the proceedings for determination of the purchase price, the necessary facts regarding resumption proceedings were not before the Tribunal. The learned Member of the Tribunal observed: It was never brought to ray notice that the application for fixation of statutory price of the suit field had been filed before the Agricultural Lands Tribunal on 22 -8 -1900, i. e. much before 1 -4 -1961. It is, therefore, evident that no notice under Section 38(1) was either given on or before 22 -8 -1960 when proceeding under Section 43 were started by Tenant Budhaji against the land holder. (Rev. Case No. 15/59/60 -61). It was during the pendency of this case that the notice as required by Section 38(1) and the application under Section 86(2) were started. The notice was given on 10 -2 -1961 and the application was filed on 29 -31961. It maybe noted that Rev. case No. 15 was disposed of by the Agricultural Lands Tribunal vide order dated 25 -2 -1961. In view of this position, the applicant landlord had no right to terminate Tenancy under Section 38(1) and he was not competent to start resumption proceedings under Section 36(2) of the New Tenancy Act as all these rights had come to an end and did not exist as the proceedings for transfer of ownership were started on 22 -8 -1960 and the same were decided on 25 -2 -1961.