1 wp-1838.90with cal-1360.07 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.1838 OF 1990 ALONG WITH CIVIL APPLICATION NO. 1360 OF 2007 IN WRIT PETITION NO. 1838 OF 1990 WP No.1838 of 1990 Ananda Lakhu Dhangar, since deceased, by his Lrs:- 1A) Babasaheb Ananda Sid & Ors. .. Petitioners Vs. Shri Shamrao Appa Dhangar. .. Respondent -- Along With Civil Application No. 1360 of 2007 Pundalik Sitaram Nimbalkar & Ors. .. Applicants. Vs Ananda Lakhu Dhangar, since deceased by his Lrs: 1A Shri Babasaheb Ananda Sid & Others. .. Respondents -- Shri A.A. Kumbhakoni i/by Shri A.M. Kulkarni for Petitioner Nos. 1A and 1B. Shri N.J. Patil for Respondent in Writ Petition. Shri S.G. Karandikar for the Applicants in Civil Application No.1360 of 2007. -- 2 wp-1838.90with cal-1360.07 CORAM : A.S.OKA, J. DATE : 14TH OCTOBER, 2010 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioners, the learned counsel appearing for the Respondents and the learned counsel appearing for the Applicants in Civil Application No.1360 of 2007. 2. One Smt. Shakuntalabai N. Nimbalkar was the owner and landlady in respect of the suit agricultural land. On 1st April, 1957 which was the “Tiller’s day” under the Bombay Tenancy and Agricultural Lands Act, 1948 ( hereinafter referred to as “the said Act” ), the said Shakuntalabai was a widow. The said landlady died on 8th December, 1965. It appears that after her demise, there was a dispute regarding her heirship. Thereafter, Atmaram Narayan Nimbalkar and Others filed an application on 6th July, 1968 before the Tahsildar contending that the tenant Ananda ( deceased Petitioner ) failed to exercise his rights of purchase under Section 32-F(1)(a) of the said Act and therefore, the landlords were entitled for possession under Section 32-P of the said Act. It appears that the said application was dismissed. The respondent also claimed to be a tenant along with the said Ananda. An appeal was preferred by the landlords. The Appellate Authority passed an order of remand. On remand, the Agricultural Land Tribunal (hereinafter referred to as the ALT ) 3 wp-1838.90with cal-1360.07 declared that the sale of the suit land to the predecessor of the Petitioners under Section 32 was effective. The claim of one Shamrao Appa Dhangar ( Respondent ) to the tenancy was negatived by the ALT on the ground that on the postponed date, he was not in possession and cultivation. The landlords preferred an appeal against the said order and even the Respondent preferred a separate appeal. 3. By the judgment and order dated 23rd January, 1979, the Collector partly allowed the appeal and remanded the matter to the ALT . While remanding the matter, the Collector held that there was no dispute that the landlady expired on 8th December, 1965 and the Appellants before him were her successors. It was also observed that there was no dispute that the land was a Vatan land and it was regranted to the Vatandar in the year 1972. The Collector observed that the ALT had taken the tiller’s day as 8th December, 1966 on the basis of the fact that the landlady died on 8th December, 1965. The Collector observed that the Tribunal has not examined the nature of Inam, the date on which the Inam was abolished and the date on which the land was actually regranted. Therefore, it was held that it was necessary to decide what was the tiller’s day in the present case. In the order of remand, the Collector observed that the opportunity should be granted to the parties to adduce evidence as regards the possession of the land on the tiller’s day. It appears that the said order of remand attained finality and the ALT made a fresh adjudication. The ALT observed that the Inam was abolished in the year 1955 i.e. prior to 1st April, 4 wp-1838.90with cal-1360.07 1957. The ALT observed that the Respondent by executing a Deed dated 26th January, 1970 surrendered the suit land. However, the ALT observed that the landlady had deposed that both the Petitioners and the Respondent were tenants on 1st April, 1957. Therefore, by an order dated 28th August, 1981, the ALT directed the landlords to sell the suit land to both the tenants under Section 32-G of the said Act. It was observed that the Respondent should approach appropriate authority for restoration of the possession. An appeal was preferred against the said order. The appeal was dismissed. The Revision Application was preferred by the Petitioner before Maharashtra Revenue Tribunal ( hereinafter referred to as “the Tribunal” ) which was dismissed by the impugned order. 4. The learned counsel appearing for the Petitioner submitted that it is an admitted position that the suit land was an Inam land and that the Inam was abolished in the year 1955. He submitted that the suit land was re-granted in the year 1972 and therefore, the deemed date of sale was postponed till the date of re-grant in the year 1972. His submission is that as on date on which the Inam land was re-granted, the Respondent was not in possession as he had surrendered the land in the year 1970 and therefore, the order under Section 32-G ought to have been passed only in favour of the Petitioner. He made a reference to the decision of the Apex Court in the case of Sadashiv Dada Patil v. Purushottam Onkar Patil (Dead) by Lrs., [( 2006) 11 SCC 161]. He also invited attention of the Court to a decision of the Hon’ble Apex Court in the case of Pandurang Dnyanoba Lad 5 wp-1838.90with cal-1360.07 v. Shri Dada Rama Methe & Others [ (1976)2 SCC 236 ]. He submitted that on 1st April, 1957, the land was vesting in the State and the question of deemed purchase arose only in 1972 when it was re-granted. He, therefore, submitted that only the Petitioner became deemed purchaser as he was the only person in possession and cultivation of the suit land on the date of the re-grant. He submitted that before the date of re-grant, the question of deemed purchase did not arise as the suit land stood vested in the State Government. 5. Learned counsel appearing for the Applicants – landlords in the Civil Application pointed out that the Applicants ought to have been impleaded as parties to the proceedings and especially to this Writ Petition. He submitted that proceedings have been initiated by the Applicants for re- possessing the suit lands which are pending. Learned counsel appearing for the Respondents supported the impugned judgment and order by contending that the deemed date cannot be postponed till the date of re- grant. 6. I have given careful consideration to the submissions. It will be necessary to advert to the order of remand passed by the Collector on 23rd January, 1979. The relevant portion of the said judgment reads thus:- “From the evidence on record it is seen that the suit land was Inam land regranted to watandar in the year 1972. In respect of Inam abolished after 1-4-57, 6 wp-1838.90with cal-1360.07 the tiller’s day is the date on which the land is regranted. In respect of Inams abolished before 1-4-57 the tiller’s day is 1-4-57. From the judgment of the A.L.T. It is seen that A.L. T. has held the tiller’s day as 8-12-66 with reference to the date of death of landlady and interest on purchase price has been calculated accordingly from 8-12-66 which is not correct and according to law. The A.L.T. has not examined the Inam nature of land with reference to Inam Patrak, the Act under which and the date on which the said Inam was abolished and also the exact date on which the land was actually regranted. These are the material factors necessary to determine the Tiller’s day in the case. Orders passed by the A.L.T. Without examining the above points are improper. I, therefore, pass the following order. O R D E R Both the appeals are allowed partially and matter is remanded back to the trial court for retrial on the observation made above. Opportunity should be granted to parties to adduce evidence as to possession of land on the tiller’s day. Parties should be informed of this order accordingly.” ( underlines supplied ) 7. The said order of remand was challenged by the Petitioner by filing a Revision Application before the Maharashtra Revenue Tribunal. Though the order of remand was confirmed, the learned Member of the Maharashtra Revenue Tribunal observed thus: - “.....The only point agitated before me, therefore, by the learned advocate representing revision applicant is that the appellate court i.e. Collector of Kolhapur is wrong, when he observed that the deemed purchase date i.e. Tillers’ day is postponed upto the date of regrant and therefore accordingly the enquiry should be held. However, all the parties agree that this 7 wp-1838.90with cal-1360.07 observation made by the Collector is not correct and that point too should be kept open for enquiry.” In the light of the said observations, the following was the operative part of the order:- “The revision application is partially allowed. The point of becoming tenant’s deemed purchasers as to on what date is also kept open and therefore this proceeding is sent back to the trial court for fresh hearing.” ( underline supplied ) 8. The landlords were parties to the said earlier order of the Maharashtra Revenue Tribunal and the said order has become final. Therefore, what was required to be decided by the A.L.T was the point of time when the tenants became deemed purchasers. All contentions on this aspect were kept open. 9. The Inam was abolished in the year 1955 and there was re- grant in favour of Inamdar/ landlord in the year 1972. It is not in dispute that on the tiller’s day i.e. 1st April, 1957, the landlady was widow and that the landlady died on 8th December, 1965. 10. In view of Section 32-F-(1)(a) of the said Act, the right of the tenant to purchase the land under Section 32 was postponed and it was provided therein that the tenant shall have right under Section 32 to 8 wp-1838.90with cal-1360.07 purchase such land, where the landlady is a widow, within one year from the expiry of period during which the landlady/landlord is entitled to terminate tenancy under Section 31. In view of Section 31 of the said Act, the landlord was entitled to give notice of possession within a period of one year from the date on which the interest of the widow in the lands ceased to exist. Thus, right to purchase became available to the tenant on 8th December, 1966. 11. Main contention raised by the learned counsel appearing for the Petitioner was that the right to purchase was postponed till 1972 when the land was re-granted to the landlords. A contention is also raised that as the Respondent had surrendered possession in January 1970, he was not entitled to purchase the said land under Section 32G as he was not in possession in 1972. It must be noted here that under the provisions of the said Act, exceptions have been specifically carved out to the right of the tenant created under Sub-section (1) of Section 32 of the said Act to purchase the land on 1st April, 1957. Under Sub-section (1) of Section 32 of the said Act, a tenant shall be deemed to have purchased the agricultural land on 1st April, 1957. A specific exception to the deemed date provided under Section 32G has been carved out in the form of Section 32-F of the said Act which has the result of postponing the date of purchase. There is no exception carved out in respect of Vatan land or Inam land. The effect of agricultural tenant holding Vatan under the provisions of Section 32 of the said Act was considered by the Apex Court in Sadashiv Dada Patil’s case 9 wp-1838.90with cal-1360.07 (supra). The Apex Court considered the provisions of Section 32 and observed in paragraph 9 that a legal fiction is created which must be given a full effect. The Apex Court considered the Section 8 of the Maharashtra Revenue Patels (Abolition of Office ) Act, 1962. In Paragraphs 19 to 24, the Apex Court held thus:- “19. Section 8 of the 1962 Act, as noticed hereinbefore, provides that the rights and liabilities of the holder of such land and his tenant or tenants shall, subject to the provisions of the said part, be governed by the provisions of that law. The proviso appended thereto whereupon reliance has been placed by Mr. Dube reads as under:- “Provided that, for the purposes of application of the provisions of the relevant tenancy law in regard to the compulsory purchase of land by a tenant, the lease shall be deemed to have commenced from the date of the regrant of the land under Section 5 or 6 or 9, as the case may be. Explanation – For the purposes of this section, the expression `land’ shall have the same meaning as is assigned to it in the relevant tenancy law” 20. The provisions of both the Acts are required to be construed harmoniously. They have to be construed keeping in view the purport and object, they seek to achieve. 21. Section 32 of the Act confers an absolute right to the tenant. 22. As in 1957 the right of the respondent to purchase the land became a vested right, the proviso appended to Section 8 of the 1962 Act could not be read to mean that such right stood divested. The proviso appended to Section 8 10 wp-1838.90with cal-1360.07 refers to the application of the provisions of the relevant tenancy laws as the same does not abrogate a vested right. The proviso, it is well known, has a limited role to play. It may create an exception. It ordinarily does not create a right or takes away a vested or accrued right. The proviso to Section 8 of the 1962 Act, in our considered opinion, does not take away a vested right conferred under the Tenancy Act. 23. By construing both the Acts harmoniously, the High Court, in our opinion, did not make a new law. It merely interpreted the same in the light of the object of the Act. The proviso appended to Section 8 of the 1962 Act merely postponed the operation of the statute. Fixation of price of the land in question subject to exercise of option by the tenant was to that extent beneficial to the landlord; but the same would not mean that legal fiction created under section 32 of the Tenancy Act would stand effaced. 24. We have noticed hereinbefore that 31-3-1957 was the cut-off date. A statutory right was conferred upon the tenant. The said right was created to fulfill the object that the tiller should become the owner; but thereby the landlord was not to be deprived of the price of the land. Section 32-O of the Tenancy Act would not be attracted, only because the proviso appended to Section 8 of the 1962 Act provides for a new date. For the said purpose, it was not necessary to make any amendment in the Tenancy Act in view of the fact that the relevant provisions of the Tenancy Act were made part of the 1962 Act. It is not a case where the Tenancy Act was required to be made applicable with retrospective effect, as the proviso appended to section 8 of the 1962 Act was to be read in the light of Section 32-G and Section 32-O of the Tenancy Act. The proviso appended to Section 8 of the 1962 Act has a limited role to play.” ( underline supplied ) 11 wp-1838.90with cal-1360.07 12. The Apex Court held that as on 1st April, 1957, the right of the tenant to purchase the land became a vested right and by virtue of Section 8 of the said Act of 1962, the right was not taken away. In Paragraph 26, the Apex Court proceeded to hold thus:- “The proviso to Section 8 of the 1962 Act, therefore, should be interpreted accordingly. It did not create any right in favour of the landlord nor did it take away the right of the tenant. It would not be correct to contend that only because Section 31 of the Tenancy Act gives an option to the landlord to terminate the tenancy and take the possession of the land. Section 32-O thereof had been given a retrospective effect. The legal fiction created under Section 32 of the Tenancy Act cannot be given a limited meaning. A legal fiction, as is well known, must be given its full effect.” 13. Therefore, the Apex Court observed that the right which is cre- ated by Section 32 of the said Act cannot be divested merely because of the abolition of Inam. In the present case, a right is accrued to the tenant on 8th December, 1966 in view of Section 32(1) read with Section 32-F-(1)(a) to purchase the land. It will also be necessary to make a reference to the decision of the Apex Court in the case of Pandurang Dnyanoba Lad (Supra). This is a case where the Apex Court considered the effect of Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955. This was a case where after abolition of the Inam in the year 1955 under the said Act of 1955, there was a re-grant of the occupancy rights made to the landlord. 12 wp-1838.90with cal-1360.07 The Apex Court observed that the relationship of landlord and tenant came to an end with the abolition of Inams and the relationship of landlord and tenant between the ex-inamdar and his tenant would stand extinguished. The Apex Court observed that :- “None of the provisions of the Tenancy Act, particular- ly the provision contained in Section 32 of the Tenan- cy Act under which tenants became entitled to pur- chase the lands held by them in that capacity on the tillers’ day, is in any way inconsistent with any of the express provisions of the Alienations Abolition Act. Section 32 of the Tenancy Act must therefore govern the rights of the ex-inamdar and his tenants notwith- standing the abolition of the inams brought about by the Alienations Abolition Act. Since the respondents did not cease to be tenants of the appellant on the in- troduction of the Alienations Abolition Act, they are entitled to purchase the lands under Section 32. Con- sequently, it was competent to the Agricultural Land Tribunal to commence the price fixation proceedings under Section 32-G of the Tenancy Act.” (underlines supplied) In paragraph 6 , the Apex Court observed that :- “In simple words, all rights of the inamdars stood de- termined on the introduction of the Alienations Aboli- tion Act; the rights of tenants continued to exist and were expressly protected by Section 28 of the Alien- ations Abolition Act.” In paragraph 7 of the judgment, the Apex Court held thus: “7. The provision contained in Section 32-G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenant’s right of purchase under Section 32. Section 32-G(6) provides that if any land is regranted to the holder un- der the provisions of any of the Land Tenures Aboli- 13 wp-1838.90with cal-1360.07 tion Acts referred to in Schedule III of the Tenancy Act on condition that it was not transferable, such condi- tion shall not be deemed to affect the right of any per- son holding the land on lease created before the re- grant and such person shall, as a tenant, be deemed to have purchased the land under Section 32-G as if the condition that it was not transferable was not the con- dition of regrant. The Alienations Abolition Act is in- cluded in Schedule III of the Tenancy Act as Item 21. Thus, even if the land, after the abolition of the inam effected under the Alienations Abolition Act, was re- granted to the appellant on condition that it was not transferable, such a condition cannot affect the right of the respondent to purchase the land under Sections 32 and 32-G of the Tenancy Act. In other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the re- straint of non-transferability. It is undisputed that the respondents were holding the land on a lease created before the occupancy rights were regranted to the ap- pellant on the abolition of the inam.” Apart from the fact that there is no specific provision under the said Act postponing the date of purchase till the date of re-grant, the law laid down by the Apex Court is very clear. Even after abolition of inam, the tenant was not divested of his rights. The date of purchase was not postponed to the date on which there was a re-grant. The tenant was not divested of his rights under section 32(1) of purchase even on the abolition of Inam under the Abolition of Inam Act, 1955. Thus, relevant date of purchase in present case is 8th December, 1966 which is the date on which the widow died. Till that date, admittedly there was no surrender by the Respondent. Hence, it is not possible to find fault with the impugned orders. 14 wp-1838.90with cal-1360.07 14. As far as the application for intervention is concerned, the Applicants were parties to the proceedings before the ALT. The Applicants did not challenge the order passed by the ALT and the challenge was made only by the Petitioner. In any event, the confirmation of the impugned order will not affect the right, if any, accrued to the Applicants of restoration of the possession and any proceedings filed in that behalf will not be affected by the impugned orders and confirmation thereof by this Court. 15. Subject to what is observed above, I pass the following order:- (a) The Writ Petition is rejected. Rule is discharged with no orders as to costs. (b) Civil Application No.1360 of 2007 stands disposed of. (A.S.OKA, J)