1 wp6355-97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6355 OF 1997 Bayaji Sambhu Mali .. Petitioner versus Najir Mohammad Balal .. Respondent Mr.D.S.Mhaispurkar for the petitioner. Mr.C.M.Kothari for the respondent. CORAM : S.C.DHARMADHIKARI, J. 5th and 8th August 2011. JUDGMENT.: . By this writ petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 9th January 1997 of the Maharashtra Revenue Tribunal. 2 The original petitioner Bayaji Mali has since expired and his heirs are pursuing the present petition. Therefore, any reference to the petitioners herein should be considered as a reference to said Bayaji. 2 wp6355-97.sxw 3 The facts leading to the present petition can be briefly stated thus. The land in question is an agricultural land and, particularly, situated at village Budh, District Satara bearing Survey No.450-1-A. The respondent is the owner of this land. He was minor on the tillers day, viz., 1st April 1957. Hence, the Tahsildar and Agricultural Land Tribunal, Taluka Khatav by his order dated 27th April 1964, dropped the enquiry. Thereafter, enquiry was initiated in the year 1977. The said Tahsildar by his order dated 6th August 1977, declared the purchase of the said land ineffective on the ground that the tenant who was the predecessor of Bayaji/ his father, failed to exercise the right of purchase under section 32F(1A) of the Bombay Tenancy and Agricultural Lands Act, 1948, within the stipulated period of two years from the date of attaining majority by the land lord. The tenant preferred an appeal being Appeal No.115 of 1977 against that decision and the Sub Divisional Officer dismissed the said appeal on 30th September 1978. Subsequently, the predecessor of Bayaji approached the Maharashtra Revenue Tribunal in a Revision Application. That revision application came to be decided on 5th November 1985. It was allowed and the matter was remitted back to the Tahsildar and ALT (Agricultural Land Tribunal). Notices were issued to both parties and 3 wp6355-97.sxw they were allowed to lead their respective evidence. The predecessor of said Bayaji stated that he does not wish to lead any oral evidence, but, submitted some documents. On the other hand, Power of Attorney holder of the respondent-owner pointed out from his deposition that the birth date of the landlord is 4th June 1948. The school leaving certificate was produced. After landlord attains majority, the tenant has to exercise right of purchase under section 32G(1)(a) within the specified period. In the present case, the tenant has lost his right and, therefore, the possession of the land be handed over to the land lord. 4 On the other hand, it was argued on behalf of the predecessor of Bayaji that the landlord had initiated proceedings under section 31 of the Act by making an application for possession. Once such an application was made by the landlord and the proceedings were initiated, it is not necessary for the tenant to exercise any right of purchase and, therefore, the purchase price be determined. 5 On behalf of the respondents, it was argued that no application was filed by the landlord terminating the tenancy of predecessor of Bayaji. No application for dispossession was filed. The extract of 4 wp6355-97.sxw appeal register cannot be taken into consideration to hold that any such application filed by the respondent-land lord. He pointed out the discrepancy from the appeal register, namely, that the tenancy case was stated to have been decided as on 27th July 1967 while the date of receipt of the appeal is mentioned as 19th June 1967. Further, he invited the attention to the statement which was given by the predecessor of Bayaji (Eknath) in which he admitted that no such notice was given by the respondent-landlord after attaining the majority for exercising right of purchase. He further deposed that copy of notice is not forwarded to the Tahsildar and Argricultural Land Tribunal, Khatav. He admitted that during the majority, the application was not made and no cogent evidence is produced by the predecessor of said Bayaji to prove that after attaining majority, the respondent landlord has terminated the tenancy and filed an application under section 29 read with section 31 of the Act. He, therefore, prayed for declaring the purchase as ineffective and handing over possession of the land to the landlord under section 32P(2)(b) of the Act. 6 The Tahsildar and Agricultural Land Tribunal, Khatav by his order dated 20th July 1990 held that the landlord was minor on the tillers day. 5 wp6355-97.sxw He attained majority on 4th June 1966. The provisions of section 32F are applicable. Therefore, it was necessary for the predecessor of Bayaji to exercise the right of purchase by giving intimation under Rule 20 in the prescribed form. That intimation ought to have been given within two years from the date of landlord attaining majority, viz., on or before 4th June 1968. This mandatory provision has not been complied with by the tenant and, therefore, he has lost his right of purchase of the suit land. 7 As far as the record produced with regard to the alleged application made by the landlord under section 31 read with section 29 of the Act is, that it is an admitted fact that there are some discrepancies in the extract. The date of lower Courts order is 27th July 1967 and date of receipt of the same is 19th June 1967. That is earlier than the order of the lower Court. There is no evidence filed to establish that the landlord terminated tenancy and made an application in terms of these proceedings after attaining the majority. On the other hand, a statement was made by the tenant that during the majority the application for possession was filed and that had been rejected by the Maharashtra Revenue Tribunal on 5th November 1968. Therefore, the 6 wp6355-97.sxw extract of appeal register filed by the predecessor of Bayaji does not help him. The predecessor of the petitioner Bayaji did not exercise his right of purchase and, therefore, the same is lost. As a result of the above discussion, he declared the purchase to be ineffective under section 32G(3) and further directed that possession of the land should be handed over to the respondent-landlord by evicting the petitioner Bayaji. 8 Aggrieved and dissatisfied with this order, the petitioner Bayaji preferred Tenancy Appeal No.40 of 1990 before the Assistant Collector, Phaltan Division, Phaltan, the appellate authority held that once the landlord attains majority on 4th June 1966, there is every possibility that he would apply for possession under section 31 read with section 29 of the Act. It is possible that, that appeal will be preferred in the Court of Sub Divisional Officer and in this case it is numbered as 148 of 1967 and the case was transferred to Special Deputy Collector on 11th November 1967. The other particulars of the case may be a hand writing mistake in the date. The Tahsildar and Agricultural Land Tribunal rightly presumed that the extract of appeal registration will not help the petitioner-appellant to establish that the 7 wp6355-97.sxw tenancy was terminated. However, compliance with section 32F(1A) is not mandatory in this case. Even if the tenant had not given any intimation, from the very beginning, he has shown his willingness to purchase the suit land as can be seen from the Khata extract produced by Tahsildar. The respondent landlord does not reside in the village. In these circumstances, there is sufficient notice and, therefore, the appeal deserves to be allowed. By his order dated 24th April 1992, the appellate authority allowed petitioner Bayaji’s appeal. Aggrieved and dissatisfied with this order of the Assistant Collector, Phaltan Division, that the respondent preferred an revision application before the Maharashtra Revenue Tribunal and by the impugned order, the Maharashtra Revenue Tribunal held that on the tillers day, the respondent-landlord was minor. He became major on 4th June 1966. It is an admitted fact that the petitioner-tenant Bayaji did not issue notice as contemplated under section 32F of the Act, within the stipulated period. It was Bayaji’s stand that the respondent-landlord has made application for possession after attaining majority and, therefore, he produced on record the extract of appeal register to show the appeal filed by the land lord. However, the Maharashtra Revenue Tribunal disbelieved this extract because of discrepancies and agreed with the 8 wp6355-97.sxw Tahsildar that, it could not have been disposed off on the dates which are mentioned. The appeal cannot be filed unless and until the judgment is passed by the lower Court, but, the certified copies of the judgment of the trial Court and the appellate Court have not been produced to prove filing of the case for possession. This was the best and primary evidence which could have been produced. That having not being produced, it was held that no application was made by the respondent-landlord before me and the applicant before the Tribunal. Therefore, the Assistant Collector’s order was termed as illegal and unjust and the Tribunal concluded that there is no compliance with the mandatory provision of section 32F(1A) of the Act, Thus, the revision application was allowed and the order of the Tahsildar was confirmed and that of the appellate authority came to be set aside. 9 It is aggrieved and dissatisfied with the order of the Tribunal reversing the appellate order and confirming that of the Tahsildar, that this writ petition under Article 227 of the Constitution of India is filed by Bayaji. 10 Mr.Mhaispurkar, learned counsel appearing on behalf of the 9 wp6355-97.sxw petitioner submitted that the Courts below ought to have appreciated that the petitioner had substantially complied with section 32F(1A) of the Act. He submitted that the Maharashtra Revenue Tribunal was in error in holding that the landlord had not filed any application for possession. Merely because a certified copy of the order dismissing the land lord’s application was not produced, does not mean that the landlord has not filed any such application. Further, the discrepancies which have been noticed in the extract of the appeal register, were not such as would enable the Tahsildar so also the Maharashtra Revenue Tribunal, to conclude that no application was ever made by the land lord. There was absolutely no perversity committed by the appellate authority. Instead, the appellate authority had extended benefit of a legislation which was made for protection of persons like Bayaji. A tenant who is cultivating his land as on the tillers day, is entitled to the rights as conferred by law. All that then remains is, an exercise of that right. For exercising that right by the tenant, certain proceedings have to be initiated in the Act. The exercise of that right is postponed if the landlord is either disabled and in this case, by minority. Since that right was postponed, in the instant case, what has been over looked is that ultimately, the landlord had initiated proceedings but the Tahsildar and 10 wp6355-97.sxw Agricultural Land Tribunal, Khatav by the order dated 27th July 1964 dropped the enquiry. It was initiated again in the year 1977. Therefore, it is nothing but a continuation of the same proceedings. That is clear from the order of remand passed by the Maharashtra Revenue Tribunal on 5th November 1985. If that is how the proceedings have been decided and determined, then, there is no question of the landlord getting possession of the land from the tenant. That would amount to taking away the protection that is guaranteed by law to the tenant. That cannot be taken away on flimsy and hyper technical grounds. Ultimately, what is contemplated is giving an intimation. Giving of intimation is mandatory. How that intimation is given is not mandatory, but, directory. If the intimation is not given in the prescribed form, it does not mean that no intimation was given. If the landlord had notice of the proceedings, right through out, and he was aware that on account of his minority the tenant cannot exercise his right, then, it cannot be said that there is non compliance with section 32F(1A) of the Act. For all these reasons, the impugned orders cannot be sustained. 11 Mr.Mhasipurkar has placed a strong reliance upon the judgment 11 wp6355-97.sxw of the Hon’ble Supreme Court reported in 2007(9) Supreme Court Cases 632 (Babu Vithu Gaikwad (Dead) by Lrs vs. Chintaman Sadashiv & Ors). He also placed strong reliance upon judgments of the two learned single Judges of this Court reported in 1997(3) Maharashtra Law Journal 783 (Amrutrao Ratnakar Rajadhye vs. Krishna Sakharam Patil & Ors) and 1991 Maharashtra Law Journal 72 (Damu Dhondi Dhekane vs. Parvatibai Hindurao Jagtap). 12 On the other hand, Mr.Kothari appearing on behalf of the respondent submitted that the view taken by the Tribunal cannot be said to be erroneous or perverse. The Tribunal was right in holding that this cannot be said to be a continuation of any old proceedings inasmuch as the enquiry allegedly made during the period within which the landlord was minor, cannot have any efficacy in law. Further, those proceedings are stated to have been dropped. The proceedings that are initiated in the year 1977 are at the instance of the said Bayaji. If Bayaji had instituted certain proceedings under section 32G of the Act, it was incumbent upon him to prove that he had complied with the mandatory requirement of giving intimation. Thus, he had to show that mandatory condition stipulated in section 32F(1A) 12 wp6355-97.sxw has been complied with. He has failed to demonstrate that. Admittedly, within a period of two years of the landlord attaining majority, no intimation was given. Once, no intimation was given, then, purchase has been rightly declared as ineffective. If that was declared to be ineffective, the tenant had no right to remain in possession of the land and it should be handed over to the respondent-land lord. For all these reasons, he submits that there is no substance in the contentions of Mr.Mhaispurkar. The record of the so called appeal filed by the land lord, cannot be produced now. The annexures to the writ petition do not show that the same is proof of filing of land lord’s appeal. Never before the trial Court, the said record was produced. In these circumstances, the petition be dismissed. 13 Mr.Kothari has placed strong reliance upon the following decisions in support of the above contentions: (1)2000(1) Mh.L.J. 867 (Kashiram Mahipati Bhaskar & Anr v. Khandu Tulshiram Jadhav & Ors); (2)2001(1) Mh.L.J. 647 (Rangrao Nivritti Lad & Ors v. Vishnu Joti Thorbole & Anr); 13 wp6355-97.sxw (3)1999 Vol.101(3) Bom.L.R 213 (Maruti Narayan Chavan, since deceased by his heirs & L.Rs v. Ramchandra Bhau Sutar, since deceased by his heirs & Ors); (4)TLR Vol.XIX-No.8 Pg.198 (Vishnu Shantaram Desai v. Indira Anant Patkar); (5)1969 Mh.L.J. 789 (Bapu Dnyanu Patil v. Sadashiv Ramchandra Joshi); (6)1997(3) Mh.L.J. 783 (Amrutrao Ratnakar Rajadhye v. Krishna Sakharam Patil & Ors); (7)(2007) 9 Supreme Court Cases 632 (Babu Vithu Gaikwad (dead) by Lrs. v. Chintaman Sadashiv & Ors); (8)1991 Mh.L.J. 72 (Damu Dhondi Dhekane v. Parvatibai Hindurao Jagtap) 14 For properly appreciating the rival contentions, it would be necessary to refer to section 32F and 32G of the Bombay Tenancy and Agricultural Lands Act, 1948. Prior thereto, it must be noticed that these provisions fall in Chapter III sub-heading (II) “Purchase of land by tenants”. Therein section 32 appears, which states that “the tenant deemed to have purchased land on tillers day”. Sub-section 1 of this 14 wp6355-97.sxw provision indicates that on the first day of April 1957, which is referred to as tillers day, every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon the said day, the land held by him as tenant if, certain conditions are fulfilled. These conditions are then set out. Then comes section 32A which is entitled “Tenants deemed to have purchased upto ceiling area”. Section 32B states that if a tenant holds land partly as owner and partly as tenant but the area of the land held as owner is equal to or exceeds the ceiling area, he shall not be deemed to have purchased the land held by him as a tenant under section 32. Section 32C provides for a choice of the lands to be purchased. Then comes section 32D which speaks of tenants deemed to have purchased fragments. The balance land after purchase by tenants has to be disposed of in terms of section 32E. Then comes section 32F which reads thus: “32F. Rights of tenant to purchase where landlord is minor, etc. (1) Notwithstanding anything contained in the preceding sections,- (a) where the landlord is a minor, or a widow, or a person 15 wp6355-97.sxw subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 [and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimation to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31:] [Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.] (b) Where the tenant is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under section 32 may be exercised,- (i) by the minor within one year, from the date on 16 wp6355-97.sxw which he attains majority; (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist; (iii) within one year from the date on which the mental or physical disability of the tenant ceases to exist; (iv) within one year from the date on which the tenant ceases to be a serving member of the armed forces: [Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that teh sahre of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion.] [(1A) A tenant desirous of exercising the right conferred on him under sub-section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section:] [Provided that, if a tenant holding land from a landlord (who was a minor and has attained majority before the 17 wp6355-97.sxw commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1969) has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-section (1), he may give such intimation within a period of two years from the commencement of that Act.] (2) The provisions of section 32 to 32E (both inclusive) and sections 32G and 32R (both inclusive) shall, so far as may be applicable, apply to such purchase.” 15 A bare perusal of the same would indicate that notwithstanding anything contained in the sections preceding section 32F, where the landlord is minor or a widow or a person subject to any mental or physical disability, the tenant shall have right to purchase such land under section 32 within one year from the expiry of period during which such landlord is entitled to terminate such tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimation to the tenant of the fact that he has attained majority before the expiry of period during which such landlord is entitled to terminate the tenancy under section 31. 16 In the present case, it is not necessary to refer to clause (b) of 18 wp6355-97.sxw sub-section 1. Sub-section 1A states that a tenant desirous of exercising the right conferred on him under sub-section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section. The proviso confers some benefits on the tenants in cases where the landlord has attained majority before the commencement of the Tenancy and Agricultural Lands (Amendment) Act, 1969. Sub-section (2) of section 32F states that the provisions of section 32 to 32E (both inclusive) so far as may be applicable, apply to such purchase. 17 Thus, the landlord being a minor or a widow or a person subject to any mental or physical disability, the right of the tenant to purchase such land under section 32 gets postponed to the period specified by clause (a) to sub-section (1) of section 32F. The tenant has a right to purchase the land within one year from the expiry of the period during which the landlord who is under disability, by virtue of being a minor, or a widow or any mental or physical disability, is entitled to terminate the tenancy under section 31. Thus, if a landlord does not terminate the tenancy under section 31, then, the tenant shall have a right to purchase a land under section 32 within one year from the expiry of 19 wp6355-97.sxw the period given to the landlord for terminating the tenancy. For enabling the tenant to exercise right of purchase, the landlord shall send an intimation to the tenant, of the fact that he has attained majority before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31. Equally, the tenant desirous of exercising right conferred on him under sub-section 1, shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section. The word “Tribunal” is also defined in section 2(19) to mean the Agricultural Lands Tribunal constituted under section 67 of the Bombay Tenancy and Agricultural Lands Act, 1948. Thus, the requirement of giving an intimation to the landlord and the Tribunal, is mandatory. That has been held in series of decisions of this Court. 18 The question to be determined is, whether in this case such an intimation was given or for want of the same, the purchase under section 32G becomes ineffective or not? 19 For that reason, section 32G will also have to be reproduced. The same reads thus: 20 wp6355-97.sxw “32G. Tribunal to issue notice and determine price of land to be paid by tenants.-(1) As soon as may be after the tillers’ day the Tribunal shall publish or cause to be published a public notice in the prescribed form