-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION Writ Petition No.326l of l990 Sudhakar Ganesh Shinde Agril, residing at Nipani Tal Chikkodi Dist Belgaum .. Petitioner vs l. Hari Laxman Patil Agril, residing at Belewadi Kallamma, Tal Kagal, Dist. Kolhapur. 2. The Mah Revenue Tribunal through its President Shri S.P.Ghogre, Notice to be served on the Registrar Mah Rev Tribunal Secretariat Annexe Bldg, Bombay.....Respondents Mr H D Gole for the petitioner Mr N J Patil for the respondent no.l Coram: S.C.DHARMADHIKARI J. Coram: S.C.DHARMADHIKARI J. Coram: S.C.DHARMADHIKARI J. Dated 25th April 2006 Judgment:(Per S.C.Dharmadhikari J.) -2- l. By this petition under Article 227 of the Constitution of India the petitioner challenges the judgment and order dated l4.2.l990 passed by the Maharashtra Revenue Tribunal (hereinafter referred to as the MRT) in Revision Application No l2 of l986. The petitioner seeks restoration of the orders passed on 24.l2.l982 by the Additional Tahasildar and Agricultural Land Tribunal, Kagal in tenancy case no. 32P/Belewadi Kallamma 245 as well as order passed by the Sub-Divisional Officer (SDO for short), Kagal date l9.2.l986 in Tenancy Appeal no. l42 of l984. 2. The proceedings are under the Bombay Tenancy and Agricultural Lands Act, l948 ( hereafter referred to as the BTAL Act). The petitioner is the landlord of the agricultural land situate at village Belewadi Kallamma in Kagal taluka, District Kolhapur,bearing S.No.l62 admeasuring 0.98 and 0.l9 ares pot kharab (hereinafter referred to as the said land). 3. The petitioner’s father was the landlord of the land until his death. It is the case of the -3- petitioner that from l953 until his death on 22.5.l964, the petitioner’s father was suffering from paralysis. According to the petitioner, he was physically disabled person as contemplated by sections 3l,32 and 32F of the BTAL Act. Laxman Santu Patil, father of the respondent no.l was the original tenant of the said land. The respondent no.l has inherited the tenancy rights of his deceased father in respect of the said land. The petitioner’s father being disabled, according to the petitioner, the tiller’s day was postponed. In the year l965 the Addl Tahasildar and ALT, Kagal initiated proceedings under section 32G of the BTAL Act. This was on the basis that the tenant had become owner of the said land. However, according to the petitioner, no notice was served in respect of these proceedings on him. The Addl Tahasildar and ALT recorded statement of the tenant on l7.9.l965 in his absence. In this statement, the tenant had expressed his desire to purchase the said land. Hence,by his order dated l0.l.l966, the Addl Tahasildar and ALT declared that the tenant had become deemed purchaser of the said land and proceeded to fix price thereof. A copy of the order of the Addl Tahasildar and ALT Kagal is -4- annexed as Exhibit A to the petition. 4. The petitioner being aggrieved by the order at Exh A preferred an appeal being Appeal No. 59l of l967 before the Special Deputy Collector for Tenancy Appeals Kolhapur. According to the petitioner, after noticing that the order passed by the Addl Tahasildar and ALT was exparte order, the appellate authority allowed the appeal and remanded the matter to the Addl Tahasildar and ALT for fresh hearing and disposal according to law. A copy of the said order is annexed as Exh B to the petition which order was passed on l2.9.l968. 5. On remand the Addl Tahasildar and ALT, Kagal recorded statements of parties and heard them. In his statement dated 7.8.l969 the tenant again expressed his desire to purchase the said land. However, according to the petitioner, the Addl Tahasildar and ALT,Kagal by his order date 7.8.l969 confined the case to the dormant file. 6. According to the petitioner, the proceedings remained in the dormant file till the year l982. Thereafter, according to the petitioner, notices -5- were issued to both parties . The Addl Tahasildar and the ALT visited site for spot inspection and for the purpose of valuing the trees therein. A reference was also made to the forest department for valuation of the trees and thereafter the statements of the parties came to be recorded. 7. In his statement dated 2l.8.l982 the tenant stated that he was desirous of purchasing the said land. The Addl Tahasildar and the ALT after considering the statements and the material on record observed that the tenant had not given intimation of his desire to purchase the said land within the time stipulated by section 32F of the BTAL At. Consequently he held that the sale of the land was ineffective under section 32F read with section 32(3) of the BTAL Act. A copy of the order dated 25.8.l982 is annexed as Exh C to the petition. According to the petitioner, this order was never challenged by the tenant. Thus, it became final and conclusive. 8 In pursuance of the order at Exh C, the Addl Tahasildar and the ALT initiated proceedings under section 32P of the said Act and by order dated -6- 24.l2.l982 directed that the tenant be summarily evicted from the said land and same be handed over to the petitioner-landlord. A copy of this order is annexed at Exh D to the petition. 9. Aggrieved by the order dated 24.l2.l982 the tenant preferred an appeal before the SDO, Kagal being Tenancy Appeal no. l42 of l984. The SDO, Kagal, heard the said appeal and by order and Judgment dated l9.2.l986 dismissed the same. A copy of the said order dated l9.2.l986 in Tenancy Appeal no. l42 of l984 is annexed as Exh E to the petition. These orders were challenged by the tenant in Revision Application before the MRT and the learned President of the MRT by the impugned order (Exhibit F to the petition) delivered on l4.2.l990 set aside the orders of the Addl Tahasildar and ALT as well as the appellate authority. In other words, the MRT allowed the revision application of the tenant. l0. The petitioner-landlord has invoked this court’s jurisdiction under Article 227 of the Constitution challenging the revisional order. -7- ll. Shri Gole, learned counsel appearing for the petitioner contended that the order passed by the MRT suffers from error apparent on the face of the record. In his submission, the MRT has exceeded its revisional jurisdiction and interfered with a pure finding of fact which is impersmissible in law. According to him, it is not permissible to reappreciate and reappraise the material in revisional jurisdiction. The MRT lost sight of this fundamental and vital aspect of the matter. According to Shri Gole, the learned President of MRT could not have disturbed the concurrent findings of fact in revisional jurisdiction and,therefore, the impugned order can safely be termed as perverse. l2. Further, according to Shri Gole, the MRT has failed to notice that the order dated 25.8.l982 is final and conclusive. The said order is passed in a proceeding under section 32G of the BTAL Act. These proceedings were initiated by the tenant under section 32G thereof. Having failed in getting a declaration that the tenant is a deemed purchaser and purchase price be fixed, it is not permissible for the tenant in a proceeding under -8- section 32P of the BTAL Act to reagitate and reopen this issue. He submits that section 32P of the BTAL Act envisages summary proceedings for eviction of the tenant, who has failed to get any right in his favour either under law or in an adjudication. Therefore, such a person is nothing but a trespasser upon the land and the landlord is entitled to evict him. Such being the nature of the proceeding initiated by the petitioner, the tenant cannot be heard to say that he has become deemed purchaser and, therefore, not liable to be evicted from the said land, more so, when he fails to challenge the order which is adverse to him. Shri Gole submits that the order passed by the Addl Tahasildar and ALT dated 24.l2.l982 is a consequential order. That is confirmed in appeal by the SDO. Once the landlord was disabled and he cannot get possession of the land then the order of the MRT deserves to be set aside. l3. Shri Gole was at pains to emphasise the fact that there is conclusive finding against the tenant that he has lost his right title ad interest in the land.He submits that the order dated 25.8.l982 being not challenged and having attained finality -9- all subsequent attempts by the tenant to same set at naught are impermissible. The petitioner must succeed in this petition because the tenant has only challenged the consequential orders and not the order dated 25.8.l982. l4. On the other hand Shri Patil appearing for the tenant submits that the order passed by the MRT cannot be challenged by the landlord because the said order is based upon materials which have been placed on record. In his submission, despite these materials being on record, the Addl Tahasildar and ALT as also the SDO failed to appreciate them in their proper perspective. In his submission, the mandate of the BTAL Act is to grant protection to a tiller of the land. Assuming that the landlord was disabled,yet, once the tenant has shown his interest to purchase the land and appeared before the competent authority, who recorded such intention,then, it is clear that the tenant had become deemed purchaser upon the postponed period in law coming to an end. In his submission, assuming that the landlord was disabled from l953 till date of his death on 22.5.l964,the fact remains that on 22.5.l964 the tenant was -10- cultivating as also in possession of the said land. Therefore, even if the tiller’s day is postponed from l.4.l957 to 22.5.l964,yet, from that date the tenant had become deemed purchaser. Therefore, it is open for the authorities to fix the purchase price. In his submission, the purchase price having been deposited by the tenant and the landlord dying during the disability there is no obligation to give notice to the successors in title of the landlord. l5. Mr Patil has strenuously urged that the order of the Addl Tahasildar and ALT dated 25.8.l982 is a nullity. Such an order can be ignored and can be challenged at any stage. He submits that it was open to the tenant to question the legality and validity of that order during the course of hearing of revision application preferred by him, more so, when in earlier proceedings the tenant has expressed his readiness and willingness to purchase the property. Mr Patil has gone to the extent of contending that all the orders after l0.l.l966 are nullity. He submits that the proceedings under section 32P initiated by the petitioner are barred by limitation. The application of the petitioner -11- deserves to be dismissed on that count alone. He submits that sufficient compliance is made by the tenant. As regards giving notice, it is submitted that once the petitioner was party all throughout it is not open for him to allege that no notice was given to the successors in title of the landlord. In support of his submission Mr.Patil placed reliance on the following decisions: l) AIR l954 SC 340 - Kiran Singh vs Chaman Paswan 2) AIR l959 SC 469 - Sri Ram Ram Narain vs State of Bombay 3) AIR l986 Bombay 86 - S.S.Horambale vs Sripad Jiwaji Apte( through L Rs) 4) (l993) 2 SCC 507- Chiranjitlal Shirlal Goenka (through LRs) vs Jasjit Singh and ors 5) l998(2) Bom C R 655- A.R.Rajadhye vs Krishna Sakharam Patil and ors l6. According to Mr.Patil the MRT has committed no error but in fact was justified in exercising its revisional jurisdiction and undoing the wrong done to the tenant in this case. Once the learned President of the MRT has noticed the judgment of the Hon‘ble Supreme Court reported in AIR l983 SC -12- 643 in the case of Amrit Bhikaji Kale and ors vs. Kashinath Janardhan Tayade and anr and the decision of His Lordship Shri Justice S.C.Pratap (as His Lordship then was) in Srikrishna S Horambale and ors vs Shripad J Apte and ors, reported in AIR l986 Bombay 86 and the facts in the present case being identical then no fault could be found with the approach of the MRT in this case. He submits that the very purpose of conferring revisional jurisdiction is to see that the courts subordinate to the MRT act within the bounds of their jurisdiction and authority and if they fail to do so then the MRT must step in and redress the injustice and correct the wrong done to the tenant. A social welfare legislation must receive such interpretation otherwise its object and purpose would be wholly defeated and frustrated. l7. For appreciating the rival submissions,it is necessary to refer to the undisputed facts. They are that the predecessor in title of the petitioner was the landlord and the petitioner succeeded him. Similarly the predecessor in title of the respondent was the tenant and the present respondent had succeeded him. The lands are -13- agricultural lands situate in an area to which the BTAL Act applies. Further, undisputed fact is that the predecessor in title of the petitioner suffered from paralysis for a prolonged period from l953 and ultimately expired on 22.5.l964.The tiller’s day is l.4.l957. According to the petitioner, on account of disability of the landlord the tiller’s day is postponed. However, it is equally true that in the year l965 after the alleged disability was removed the tenant requested the authorities to fix purchase price on the basis that he had become deemed purchaser of the land. The order dated l0.l.l966 may have been set aside in appeal at the instance of the petitioner, but the above mentioned facts recorded therein are not at all controverted. l8. With the assistance of the learned counsel appearing for both sides I have perused the orders, copies of which are annexed to this petition. The above facts are gathered from a reading of the same. From a perusal of the orders, it is apparent that the proceedings which were initiated by the tenant way back in the year l965 culminated in an order in his favour dated l0.l.l966. Upon appeal by the petitioner the matter was remanded by the -14- appellate authority on l2.9.l968. It is unfortunate that the tenant was locked in a battle continuously because although being in physical possession and cultivating the said land the proceedings remained in the dormant file. For no fault of the tenant from l968 till l982 the authorities did not bother to take up the matter. One of the grounds put forth by the landlord’s advocate appearing before me is that some amendments were contemplated to the BTAL Act and, therefore, the proceedings were consigned to the record. The fact remains that the Act has been amended extensively in the year l969 but that is hardly any justification for the proceedings remaining pending for l3 years. l9. Be that as it may, noticing that the tenant was cultivating the land,the authorities held that the landlord was suffering from paralysis and in their opinion the right of purchase of the land by the tenant, therefore,is postponed. The authorities have also noticed that the tenant’s statement was recorded after he appeared and purchase price was fixed. Thereafter,the order was set aside and fresh inquiry commenced. It is also -15- admitted that the tenant reiterated his stand when statements were recorded once again after remand on 2l.8.l982. The MRT has noticed these facts and rightly concluded that the tenant had become deemed purchaser statutorily and automatically on 22.5.l964 when the disabled landlord died while still under disability. The MRT, therefore extended and in my opinion rightly, the benefit of the Amended Act to the tenant in this case. 20. The MRT has referred to the fact that for the second time the tenant expressed his desire to purchase the said land on 7.8.l969 when his statement was recorded by the Addl Tahasildar and ALT in proceedings under section 32G of the BTAL Act. This statement was recorded after notice was given by the Addl Tahasildar and ALT and even landlord’s statement was recorded on the same day. This date clearly falls within the period of 2 (two) years from the commencement of the Amending Act. In these circumstances, the right of the tenant to purchase the land could not have been denied by the orders under challenge before the MRT. -16- 2l. In my view there is another angle from which the whole matter can be appreciated, namely, if the tiller’s day was postponed and the tenant had become deemed purchaser, then all that remained was fixation of purchase price.It is for fixation of purchase price that the matter came to be remanded from time to time. This aspect can be better appreciated by referring to the order of remand. The order of remand passed in l968 sets aside the order dated l0.l.l966 which fixes the purchase price. The landlord being under disability and dying during that period on 22.5.l964 the order on the application under section 32G passed in l966 is admittedly after the death of the predecessor in title of the petitioner. Thus, all throughout emphasis was on this fact, namely, whether the purchase price can be fixed and what should be the same. After remand issues were framed and it is true that the findings on issue no. 3 are that the tenant has not exercised his right in the manner provided under section 32F (lA) of the BTAL Act. However, the aspect of notice is not very much relevant when within the period of amended statute the landlord and the tenant appeared and their statements were recorded. Thus, the fact that -17- there is failure to give notice has not been seen of much consequence. Before me, the emphasis is that the order dated 25.8.l982 having gained finality, the tenant is liable to be evicted summarily. In my view, the socalled finality attached to this order cannot wipe out the legal consequence on the above noted admitted facts. That, the tenant has not challenged this order further does not mean that the legal effect and consequences flowing from the statutory provisions are wiped out. More so, in the context of a social welfare legislation, which is enacted to confer a title on the tiller of the land. 22. Somewhat, similar was the controversy before the Hon‘ble Supreme Court in the decision reported in AIR l983 SC 643. After referring to the earlier decision reported in AIR l959 SC 459 in para 6 of this decision this what the Supreme Court observed: "The Tenancy Act was comprehensively amended by Amending Act l5 of l957. The amendment brought in a revolutionary measure of agrarian reforms making tiller of the soil the owner of the land. This was done to -18- achieve the object of removing all intermediaries between tillers of the soil and the State. S 32 provides that by mere operation of law, every tenant of agricultural and situated in the area in which the Act applies shall become by the operation of law, the owner thereof. He is declared to be a deemed purchaser without any thing more on his part. A Constitution Bench of this court in Sri Ram Ram Narain Medhi v State of Bombay, l959 Supp (l)SCR 459 at p 5l8 = AIR l959 SC 459 at p 472) held 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 -19- price thereto as determined by the Tribunal". Therefore, it is unquestionably established that on the tillers’ day, the landlords interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant. That very moment landlord tenant relationship as understood in common law or Transfer of Property Act comes to and end. The link and chain is broken. The absent non cultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable. The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal u/s 32G. In other words, the landlord ceases to be landlord and the tenant become the owner of the land and comes in direct contact with the State.Without any act of transfer inter vivos the title of the landlord is -20- extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April l, l957 Tarachand was the landlord and Janardhan was the tenant. Tarachand landlord was under no disability as envisaged by S 32F. Therefore, on April l,l957 Janardhan became deemed purchaser and Mr. Lalit could not controvert this position." The only distinguishing feature is that the landlord in this case was under no disability. In the case at hand, disability was there and the tiller’s day was postponed but the legal effect remains the same .In other words, upon the tenant becoming deemed purchaser and the landlord ceasing to be the landlord, the tenant is the owner of the land and comes in direct contact with the State. In this case the relationship with State commenced from 22.5.l964. In the case before the Supreme Court the sole controversy was whether the sale was postponed. The decision is in identical fact situation as is clear from a reading of para l of -21- the Supreme Court decision. There also the minor landlord commenced proceedings for eviction /recovery of possession from the tenant J, who had become deemed purchaser, according to the Supreme Court. However, the Supreme Court noticed that such proceedings at the instance of the minor landlord cannot wipe out the obvious fact that on the tiller’s day the landlord being under no disability the consequence must follow and the sale could not be postponed. 23. Before the Supreme Court, in a proceeding initiated by the landlord the above aspects came to its notice. The Supreme Court noticed that after the relationship of landlord and tenant was snapped no proceedings could have been commenced for possession. This aspect is noted and on that basis the Supreme Court in paras l0,ll and l2 observes thus: "l0. The attempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of a -22- jurisdictional fact that the recorded owner was a minor on the tillers’ day. When a tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, the decision is a nullity and can be set up in collateral proceeding. The tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the tribunal lacked the jurisdiction to entertain any proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant had ceased to be a tenant much prior to the orders passed by the tribunal on April 24,l96l and July l3, l967 holding that the date of compulsory