Civil Appeal No 1583 of 1970
Appeal by special leave from the Judgment and order dated the 22 12 1969 of the Gujarat High Court in SCA No 1630 of 1969
V A Bobde and A G Ratnaparkhi for the Appellant
R B Datar and Ms Madhu Moolchandani for the Respondent
The Judgment of the Court was delivered by DESAI J
Appellant Sureshbhai is the owner of land bearing Survey No 21 situated at Village ode Taluka Anand District Kaira in Gujarat State
One Nathabhai Zaveribhai and the present respondent were recorded as tenants on the tillers  day ie Ist April 1957
Section 32 of the Bombay Tenancy and Agricultural Lands Act 1948  Tenancy Act for short provided that on the 1st day of April 1957 hereinafter referred to as the tillers  day every tenant shall subject to the other provisions of the section and the provisions of the next succeeding sections be deemed to have purchased from his landlord free from all encumbrances subsisting thereon on the same date the land held by him as tenant
Section 32G provided for the follow up action of the compulsory purchase that ensues by the 994 operation of sec
Section 32G thus envisages the determination of the price in accordance with the various provisions of the Act of the land deemed to have been purchased by the tenant on the tillers  day and the methodology of its payment
In order to determine the price the Agricultural Lands Tribunal  Tribunal  for short has to serve a notice in the prescribed manner to a all tenants who us 32 are deemed to have purchased the lands b all landlords of such lands and c all other persons interested therein to appear before it on the date specified in the notice
Sub sec
2 provides that the Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant
Sub sec
3 provides that where tenant fails to appear or makes a statement that he is not willing to purchase the land the Tribunal shall by an order in writing declare that such a person is not willing to purchase the land and that the purchase is ineffective
The remaining sub secs
provide the manner and method of determining the price
The Tribunal having jurisdiction in the area in which the land involved in the dispute is situated issued notice to Nathabhai Zaveribhai and the present appellant as well as the landlord of the land us 32G
It appears both the tenants ie Nathabhai Zaveribhai and the present respondent refused to accept notice to remain present and when summons was served by substituted service both of them did not remain present The Tribunal accordingly declared the sale ineffective as provided by sec
32G3
The Tribunal accordingly made its order annexure dated July 20 1962 declaring that the sale is ineffective
Subsequently the present respondent made an application us 32 PP requesting the Tribunal to determine the price of the land deemed to have been purchased by him being Survey No 21 of Village ode on April 1 1957
It may be clarified that sec
32 PP was designed to give a further opportunity to the tenant who had failed to appear before the Tribunal which led to the sale being held ineffective to purchase the land
This application was resisted by the appellant landlord The Tribunal held that the present respondent was not a tenant of the suit land and Nathabhai Zaveribhai was the only tenant who has not made an application us 32 PP and therefore the present respondent is not entitled to be declared a deemed purchaser and accordingly it is not necessary to determine the purchase price
The respondent preferred an appeal to the Deputy Collector
This appeal was dismissed by the Deputy Collector concurring with the findings of the Tribunal
The respondent moved a revision petition us 76 995 of the Tenancy Act in the Gujarat Revenue Tribunal
A learned member of the Gujarat Revenue Tribunal held that once the notice was issued to person who is shown to have purchased the land us 32 and if the sale is held ineffective because of his absence under sec
32 G in a subsequent proceeding us 32 PP it is not open to the landlord to challenge that such a person was not tenant
Alternatively on the merits it was held that the present respondent was tenant of the land on April 1 1957 and he has become a deemed purchaser and the Tribunal was bound to determine the price
The matter was accordingly remitted to the Tribunal
Present appellant landlord moved a petition under article 227 in the High Court of Gujarat which was dismissed in limine
Hence this appeal by special leave
It is not in dispute that the notice us 32G was issued to the present respondent and Nathabhai Zaveribhai with a view to determining the price of land bearing Survey No 21
The notice was also served upon the appellant landlord
In a proceeding for determining the price the necessary parties are the landlord and the tenant as the tenant becomes the owner of the land by operation of law
A statutory duty is cast on the Tribunal to proceed to determine the purchase price
But as held by a Constitution Bench of this Court in Sri Ram Ram Narain
Medhi vs The State of Bombay1 that the title of the landlord to the land passes immediately to the tenant on the tillers  day and there is a completed purchase or sale thereof as between the landlord and the tenant
The title of the land which was vested originally in the landlord passes to the tenant on the tillers  day and this title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal
 Thus it is clear that the title passes by the operation of law
The Tribunal has to determine the price as envisaged by section 32G
In order to effectively dispose of the proceedings in the presence of the necessary parties the Tribunal is under an obligation to issue notice to the landlord and the tenant
Order of the Tribunal dated July 20 1962 shows that both the tenants and the landlord were served
The order further shows that the tenants refused to accept the notice and after substituted service did not remain present
It 996 appears that the landlord remained present
The Tribunal declared the sale ineffective on account of the absence of the tenants
So far there is no dispute It appears that the Legislature became aware of the fact that for want of legal literacy a sizeable number of tenants did not appreciate the implication of such a revolutionary measure and presumably under some influence of the landlord and the local atmosphere the tenants did not appear before the Tribunal with the result that the statutory sales were declared ineffective
The Legislature took notice of this phenomenon defeating an agrarian reform legislation and introduced sec
32 PP by the Amending Act of 1965
32 PP was designed to give a further opportunity to the tenant to purchase the land
The relevant portion of sec
32 PP reads as under section 32 PP
Notwithstanding anything contained in sections 32G and 32P where before the date of the coming into force of the Bombay Tenancy and Agricultural Lands Gujarat Amendment Act 1935 hereinafter referred to in this section as the said date i any land has been at the disposel of the Collector under section 32P on account of the purchase of the land by the tenant thereof having become ineffective under sub section 3 of section 32G by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land and    Pursuant to this fresh opportunity afforded by sec
32PP respondent made an application requesting the Tribunal to determine the purchase price
The Gujarat Revenue Tribunal Revenue Tribunal for short held that the sale had become ineffective under sub sec
3 of sec
32G by reason of the tenant failing to appear before the Revenue Tribunal and therefore in an application under sec
32PP the status of the applicant being a tenant is no more open to debate or dispute and must be deemed to be concluded between the parties
It is difficult to subscribe to this view
32PP 997 confers a right upon a person claiming to be a tenant and the precondition is that he having failed to appear before the Tribunal in a proceeding us 32G can make an application for determining the price
In such a situation the landlord is a necessary party
The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application us 32PP was not a tenant on April 1 1957
It is difficult to subscribe to the inter pretation of sec
32PP adopted by the Tribunal
Undoubtedly only that person is entitled to make an application us 32PP who having failed to appear before the Tribunal in a proceeding us 32G the statutory saie was declared ineffective but on that account such person making an application under sec
32PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the language of sec 32PP
It is undoubtedly true that an application us 32PP can be made where the purchase of the land by the tenant has been declared ineffective us 32G3 by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land
But it should not be overlooked that where a notice was sent by the Tribunal us 32G to the person to whom the Tribunal prima facie believed to be a tenant and if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective the application us 32 PP would not preclude the landlord from contesting the petition by showing that the applicant was not a tenant on 1457
In any proceeding us 32G and 32PP the most important issue to be determined is whether the person claiming to be a tenant was a tenant on April 1 1957 and an additional issue will have to be determined in an application us 32PP whether to such a person notice had been issued us 32G and on his failure to appear the sale became ineffective
The Revenue Tribunal appears to be of the view that unless the landlord challenged the order us 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1 1957 and is failure to appear without anything more would clothe him with the status of a tenant
This approach overlooks the possibility of a person to whom notice is served not appearing because he had nothing to do with the land
In such a situation an unadjudicated inferential determination of status cannot preclude an inquiry into the status which is a sine 998 qua non for claiming the right in a subsequent proceeding between the parties
Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general principle of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry
There is only one situation which may preclude the enquiry in that if on receipt of notice the tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective the landlord in subsequent proceeding under sec
32 PP would be estopped from challenging the status of the applicant tenant
Such is not the case
Otherwise on a challenge by the landlord in a proceeding under sec
32 PP the Tribunal have to determine the jurisdictional facts that i the applicant was a tenant on April 1 1957 and ii that the sale was declared ineffective under sec
35G Therefore the view of the Tribunal that in a proceeding us 32PP the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct
Mr Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal
We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date
Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record his name appears in the record of tenancy for certain years
Further the landlord has not put on record his statement in the proceeding us 32G whether he disputed the status
The landlord did not take any step under sec
15 after the sale was declared ineffective
Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord
The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date the Tribunal was right in directing that the purchase price be determined
This is the only point involved in this appeal
As we find no merit in it the appeal fails and is dismissed with costs
HSK Appeal dismissed


Summary:
By the operation of section 32 of the Bombay Tenancy and Agricultural Lands Act 1948 the respondent who was recorded as a tenant on the tillers  day i e 1st April 1957 was deemed to have purchased the land from the appellant landlord subject to other provisions of the Act
The respondent having refused to accept notice us 32G for determining the price of the land and failing to appear the Tribunal declared the sale ineffective
Subsequently the respondent made an application under section 32 PP that afforded a fresh opportunity to a tenant who had failed to appear before the Tribunal as a result of which the sale was held ineffective requesting the Tribunal to determine purchase price of the land
The Tribunal held that the respondent was not a tenant of the land and was not entitled to be declared a deemed purchaser and accordingly it is not necessary to determine the price The Deputy Collector dismissed the appeal preferred by the respondent
The Revenue Tribunal in a revision petition held that once the notice was issued to a person who is shown to have purchased the land us 32 and if the sale is held ineffective because of his absence in the proceeding under section 32G in a subsequent proceeding us 32 PP it is not open to the landlord to challenge that such a person was not tenant
A petition under Article 227 of the Constitution moved by the appellant landlord was dismissed in limine by the High Court Dismissing the appeal  HELD The view of the Revenue Tribunal is not correct
Section 32 PP confers a right upon a person claiming to be a tenant to make an application for determining the price and the pre condition is that he failed to appear before the Tribunal in a proceeding us 32G
In such a situation the landlord is a necessary party
The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application us 32 PP was not a tenant on April 1 1957
Undoubtedly only that person is entitled to make an application us 32 PP who having failed to appear before the Tribunal in a proceeding us 32G the statutory sale was declared ineffective but on that account such person making an application under section 32 PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the 993 language of section 32 PP
The Revenue Tribunal s view that unless the landlord challenged the order us 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1 1957 and his failure to appear without anything more would clothe him with the status of a tenant overlooks the possibility of a person to whom notice is served not appearing because he had nothing to do with the land
996 H 997 A H The failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general principle of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry
There is only one situation which may preclude the enquiry in that if on receipt of notice the tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective the landlord in subsequent proceeding under section 32 PP would be estopped from challenging the status of the applicant tenant
998 AC