( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3305 OF 1991 Shri Ramesh Balkrishna Vidwans, R/o Kopargaon, Dist. Ahmednagar. PETITIONER VERSUS 1. Shri Ramkrishna Sonu Nagre Since deceased, by L.Rs. 1A) Govind Ramkrishna Nagre Since deceased by L.Rs. 1-a Somnath Govind Nagare 1-b Rishikesh Govind Nagare 1-c Shakuntalabai Govind Nagare All residing at Ashoka Stambha, Shivaji Colony, Anandvalli Naka, Gangapur Road, Nasik. 1B) Arvind Ramkrishna Nagare, Both r/o Utkarsh Colony, Anand Walli, Gangapur Road, at Nasik, Dist. Nasik. 2. Smt. Jankibai Manohar Vidwans, R/o Near Gautam Bank, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar. RESPONDENTS ..... Mr. S.D. Kulkarni, advocate for the petitioner. Mr. R.L. Kute, advocate holding for Mr. R.N. Dhorde, advocate for respondents No. 1A (a to c). ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th January, 2010] ( 2 ) ORAL JUDGEMENT : 1. By this petition, the petitioner challenges judgement and order rendered by learned Member of Maharashtra Revenue Tribunal, Pune in revision application No. MRT/AH/III/1/90 (TNC.B.61/90) whereby orders of the Tenancy Tribunal in Tenancy Case No. 117/73 was confirmed. 2. The petitioner is tenant of land Survey No. 47/2A situated at village Brahmangaon under Kopargaon Tahsil. The deceased respondent No. 1 was the landlord. The land was leased out to father of the petitioner somewhere in 1939 for period of twelve (12) years. The lease period was extended from time to time. There is no dispute about the fact that the deceased respondent No. 1 had executed a lease-deed in favour of the petitioner’s father for period of 99 years on July 3rd, 1958. On the next day i.e. 4th July, 1958, an unregistered agreement of sale was allegedly executed by the deceased respondent No. 1 in favour of petitioner’s father. The amount of advance rent (Rs. 2000/-) was ( 3 ) allegedly to be treated as consideration amount for the sale transaction. The father of the petitioner was entitled to get executed a registered sale-deed without payment of any further amount and that was the only formality which allegedly had remained unaccomplished. The respondents filed application under section 43B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”) for fixation of reasonable rent. They asserted that since 1970-1971 onwards till filing of the application, the petitioner had cultivated sugarcane crop in the leased land and, therefore, was liable to pay a reasonable rent which could be fixed by invoking the powers under section 43B of the BT&AL Act. The Tenancy Tribunal allowed the application and held that the petitioner was liable to pay rent at Rs. 125/- per year from 1973-1974 onwards. The petitioner and the respondent No. 2 challenged the order of the Tenancy Tribunal by filing an appeal (Appeal No. 38/1988). The said appeal was allowed by the Deputy Collector, Sangamner. The deceased respondent No. 1 challenged the order of the Deputy Collector by filing revision application before the Maharashtra Revenue Tribunal ( 4 ) (M.R.T.) which came to be allowed. 3. The contention of the petitioner is that due to his agreement of sale dated 04-07-1958, he was no more a tenant of the land in question, but was a prospective purchaser. His legal position had changed due to such subsequent agreement of sale and, therefore, he was not liable to pay any rent under section 43B of the BT&AL Act. He contended that he has filed suit for specific performance of the agreement of sale and that his rights as a tenant had submerged into the ownership rights. He submitted that there was not landlord-tenant relationship as a result of the subsequent agreement of sale. In this view of the matter, he alleged that he was not liable to pay the rent amount as directed by the Tenancy Tribunal and confirmed by the M.R.T. 4. Heard learned counsel. 5. Before I proceed to consider the rival submissions, it would be appropriate to refer the terms of the registered lease-deed dated 07-07-1958. The ( 5 ) lease transaction purports to show that the petitioner gave the land in question on lease, for consideration, which was half share out of the entire land Survey No. 47/2A, to the deceased respondent No. 1 for period of 99 years. The amount of Rs. 2000/- was paid by way of advance. The recitals of the registered lease-deed would make amply clear that the land in question was being irrigated due to availability of lift irrigation system and it was the land wherein sugarcane crop and fruit bearing trees were planted. In case of the land useful for cultivation of sugarcane, there are special provisions contained in Chapter-III (A) of the BT&AL Act. A plain reading of Chapter-III (A) of the BT&AL Act would make it manifest that these provisions are the special one and those will have precedence over other general provisions of the BT&AL Act as well as other general laws. The relevant provision i.e. section 43B commences with non-obstinate clause. The first part of section 43B reads as follows: “43B. Notwithstanding any agreement, usage, decree or order of a court or any other ( 6 ) authority, in the case of any land to which section 43A applies, the rent payable shall be reasonable rent as determined under the following clauses.....” 6. It may be mentioned here that section 43A is applicable when lease of the land pertaining to industrial or commercial undertakings or in respect of certain Cooperative Societies or for cultivation of sugarcane or fruits or flowers. In the present case, the lease of the land was for the purpose of sugarcane cultivation and also for the purpose of cultivation of fruit bearing trees. Needless to say, the lease transaction is covered by section 43A and hence, it goes without saying that provision contained in section 43B is attracted. 7. What appears from the fact situation of the present case is that the deceased respondent No. 1 submitted application for fixation of the rent under section 43B on the allegation that sugarcane crop was cultivated from 1970-1971 onwards. Indeed, when the ( 7 ) land is found to be useful for cultivation of sugarcane crop or as an orchard, whether it is used for such purpose or not is immaterial. Therefore, such application could have been moved even prior to the period of such actual cultivation of sugarcane crop. In “Annappa Sidappa Nargude since deceased by his Lrs Nemu Bhima Nargude and others v. Laxmibai Sadashiv Date since deceased by her Lrs. Ramchandra Waman Phatak and others” 2003 (2) Mh.L.J. 497, a Single Bench of this Court (Hon’ble Mr. Justice A.M. Khanwilkar) held that the fact that the tenant did not use the land for cultivation of crops specified under lease viz. cultivation of the sugarcane crop or growing of fruits or flowers etc., would be of no consequence because what is required by that provision is that lease of land shall be for the purpose specified under clause (b). It is held that the fact that lands have not been utilized for the purpose for which it was so leased cannot negate the rigours of the special provisions of Chapter IIIA of the BT&AL Act. Obviously, the deceased respondent No. 1 was entitled to claim fixation of reasonable rent even for ( 8 ) period prior to 1970. Still, however, the grant of reasonable rent as per the order of the Tenancy Tribunal is from 1973-1974 onwards and such order has not been challenged by the tenant at any given point of time till now. 8. Mr. Kulkarni strenuously argued that when the character of position of the petitioner had undergone substantial change due to the subsequent agreement of sale, he was not liable to pay the reasonable rent. For, he became prospective purchaser. He would submit that the Tenancy Tribunal did not consider the petitioner’s status as a prospective purchaser and continued to erroneously treat him as a tenant. He contended that the tenancy agreement has merged into the agreement of sale and, therefore, the application under section 43B was tenable. I find it difficult to countenance the submission of Mr. Kulkarni. One cannot be oblivious of the fact that there was mere agreement of sale which did not bestow ownership rights on the petitioner. His so called ownership rights were in inchoate position. The petitioner’s status as a tenant ( 9 ) could not have been transformed to the status of an owner as such. The suit for specific performance of the alleged agreement of sale is still pending. The petitioner cannot utilize agreement of sale as defence to avoid payment of reasonable rent for the reason that section 43B itself makes it clear that the rights are available irrespective of any agreement or even if there is a decree of the Court. Mr. Kulkarni invited my attention to section 25A of the BT&AL Act. The tenancy in case of usufructuary mortgage transaction would remain in abeyance if section 25A is invoked. This is not a mortgage transaction. Secondly, a Single Bench of this Court in “Annappa Sidappa Nargude since deceased by his Lrs Nemu Bhima Nargude and others” (supra), concluded the issue and held that the provisions of Chapter-IIIA of the BT&AL Act are the special provisions. It is held that these provisions under Chapter-IIIA will have precedence over all the general provisions of the BT&AL Act. Needless to say that section 43B will prevail over all the other general provisions of the said Act. ( 10 ) 9. Mr. Kulkarni also referred to certain observations in “Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & sons” (AIR 1950 S.C. 1). The Apex Court held that plea under section 53A of the Transfer of Property Act was available when the lessee was in possession in pursuance to agreement of lease. The legal issue dealt with by the Apex Court relates to protection available under section 53A of the Transfer of Property Act. No such issue is involved in the present context. The petitioner still is a lessee of the land in question. There is yet another difficulty in the way of the petitioner. It emerges from the record that his earlier revision application No. MRT-AH/II/8/79 was dismissed by the M.R.T. In the said matter, similar contentions were raised by the petitioner. The earlier round of litigation attained finality. To overcome such difficulty, Mr. Kulkarni would submit that in the earlier round of litigation, the case of the petition was not in respect of the change of his status as a prospective purchaser, but it was in respect of alleged ( 11 ) waiver of the rights. Be that may as it is, the plea raised herein was available to him at the time of earlier round of litigation. His failure to raise such contention in the earlier round of litigation would amount to estoppel and in any case, the same cannot be re-agitated in view of the principle under Order-XXI Rule-2 of the Civil Procedure Code though the Civil Procedure Code is not applicable in stricto senso. 10. For the aforestated reasons, I have no hesitation in holding that the impugned order is quite proper. No interference is called for. 11. In the result, the petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp3305-91