Case: Rangnath Vs. Daulatrao And Ors

Tenancy Act was not applicable to the land. The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been asserted by the appellant not even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant Was, had no right to induct any tenant on the Inam land. The fact remains that respondent no. 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It could not but be in his capacity as a tenant of the appellant. It is no t open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first a uthority and consequently the order was also a nullity. There is no substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows:44(1) "Notwithstanding anything contained in section 6 or 19 but subject to the provisions of sub-sections (2) to (7), landholder (not being a landholder within the meaning of Chapter IV-C) may) after giving notice to the tenant and making an application for possession as provided in subsection (2), terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating it personally. "5. Section 32 prescribes the procedure of taking possession of the land and sub-section (2) says "Save as otherwise provided in subsection (3A), no landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form within a period of two years from the date of the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957, or the date on which the right to such posses sion accrued to him whichever is later." Reading the wordings of sections 44(1) and 32(2) of the Tenancy Act it was not possible to accept the contention put forward on behalf of the appellant that by mere service of notice and the filing of application for possession the tenancy had some to an end. Until and unless possession was directed to be delivered to the landholder by the competent authority, the tenant continued in possession and continued to be so as a tenant. A full Bench of the Bombay High Court in Dattatraya Sadashiv Dhond v. Ganpati Raghu Gaoli(67 Bombay Law Reporter, 521 .) expressed the view at page 529 "The manner in which a tenancy is to be terminated is, however, laid down in section 44. Under this section the tenancy terminates when after giving the requisite notice the landholder makes an application for possession to the Tehsildar. Thereafter the tenants possession is not unlawful, but it is not held by him as a tenant. He has an estate in possession, which he will lose if the Tehsildar makes an order in favour of the landholder. If, however, the Tehsildar rejects the application of the landholder, the termination of tenancy by the-landholder will become ineffective. The tenancy will revive and the tenant will continue in possession as if his tenancy had not been terminated." Although the view so expressed by the Bombay High Court may not be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 o f the Act. Sub-section (10) empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28(5) says that on the granting of the application for possession the tenancy shall stand terminated from the commencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did not come to an end by the mere service of notice and the filing of the application by the appellant against respondent no. 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of a n occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy A ct had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It was not necessary for the State Government to give a personal hearing to the appellant or his authorised representative before disposal of his appeal. As has been repeatedly pointed out by this Court the State Government ought to have disposed of the statutory appeal of the appellant filed under section 2A(2) of the Abolition of Inams Act by a speaking order. It may not be possible in all cases to say that a non-speaking order is bad or invalid on that account alone but when an order is liable to be challenged under Articles 226 or 227 of the Constitution of India, Courts do insist that an appeal of the kind filed by the appellant should be and ought to have been disposed of by a speaking order giving some reasons in its support. But on the facts and in the circumstances of this case the High Court did not feet persuaded, and in our opinion rightly, to set aside the order of the State Government and remit back the appellants appeal to them merely on that account. No determination or adjudication of facts was involved The decision of the case rested on the points of law. The High Court did examine the question as to whether respondent no. 1 could not be a tenant of the appellant because of the reason that the Inam had been held to be a Watan Inam and consequently according to the appellant it was a service Inam. In the present proceeding the High Court pointed out that respondent no. 1 was admittedly the appellants tenant. Mere service of notice under section 44 of the Tenancy Act had not terminated the tenancy. The proceeding for resumption of the land under the Tenancy Act finally terminated against the appellant on the ground that respondent no. 1 could no longer be evicted as he had acquired the right of an occupant under the Abolition of 1 On the finding recorded by the Deputy Collector in his order dated 30-11-1962 that the appellant held the Inam as a Watan for the purpose of this case we shall assume in his favour that it was a service Inam and hence the pro visions of the Tenancy Act were not applicable. But such a stand is wholly contrary to the appellants case in the previous proceedings for resumption of land. Every where the appellant asserted that respondent no. 1 was his tenant, so much so that in his Special Civil Application No. 1881 of 1962 a copy of which was given to us by Mr S. T. Desai, learned counsel for respondent no. 1, he had stated in paragraph 7 "That the learned Member of the Tribunal has failed to apply his mind to the provisions of Sec. 102(c) which was in force prior to the substitution of new Section 102-A(c) of the Hyderabad Tenancy and Agricultural Lands Act. It does not apply to the case in question as the suit land is an Inam land not a service Inam, so the Tenancy Act is applicable to the present case." It is not open to the appellant to change his stand and then assert that the previous proceedings started by him for resumption of the land was ultra vires and without jurisdiction as the Tenancy Act was not applicable to the land. The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been asserted by the appellant not even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant Was, had no right to induct any tenant on the Inam land. The fact remains that respondent no. 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It could not but be in his capacity as a tenant of the appellant. It is no t open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first a uthority and consequently the order was also a nullity. There is no substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows:44(1) "Notwithstanding anything contained in section 6 or 19 but subject to the provisions of sub-sections (2) to (7), landholder (not being a landholder within the meaning of Chapter IV-C) may) after giving notice to the tenant and making an application for possession as provided in subsection (2), terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating itthe view so expressed by the Bombay High Court may not be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 o f the Act. Sub-section (10) empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28(5) says that on the granting of the application for possession the tenancy shall stand terminated from the commencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did not come to an end by the mere service of notice and the filing of the application by the appellant against respondent no. 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of a n occupant under section 6(1) of the Abolition of Inams Act. There was no error committed by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy A ct had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding