Case: Madharao Rajeshwar Deshpande Vs. Shanker Singh &amp; Ors

1. This is an appeal by special leave from a judgment of the Bombay High Court dismissing a petition filed by the appellant under Article 227 of the Constitution2. The dispute relates to survey No. 284 having an area of 11 acres and 6 gunthas in Mouza Paras, Taluk Balapur, District Akola. The appellant is the owner of this field while respondent No.1 is the protected lessee. The case is governed by the Bombay Tenancy and Agricultural Lands (Vidarbha and Kutch Area) Act 99 of 1958 which came into force on December 30, 1958, hereinafter called "the Act". In August 1963 the appellant filed an application before the Tehsildar under Sections 43 (14-A) and 36 (2) of the Act for possession of the aforesaid field on the ground that respondent No. 1 had failed to exercise his right of purchase in respect of that field under the provisions of the Act. He must, therefore, be deemed to have surrendered the same to the appellant. The Tehsildar sustained the defence of respondent No. 1 that he had become an owner of the said field on April 1, 1961 under Section 46 of the Act and dismissed the application. The order of the Tahsildar was confirmed by the Deputy Collector (Tenancy Appeals) and the Maharashtra Revenue Tribunal to whom the matter was taken in appeal and revision respectively. It may be mentioned that originally the appellant had filed applications against three of his tenants including respondent No. 1 and the tribunal dismissed by one order all the three revision petitions preferred against the orders made in three cases. The appellant, however, filed a petition under Article 227 of the Constitution challenging the order made in the case of respondent No. 1 alone.

Reasoning: 8. We are unable to accept any of the contentions raised on behalf of the appellant so far as the effect of Section 42 (c), as it stood before its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which was filed by the appellant was not founded on any facts or pleas relevant to Section 42 (c). The contention as raised leads to unusual and strange results. If the appellant was entitled to an area of 26 acres it is difficult to see how he could choose only respondent No, 1 and leave out the other tenants for the purpose of retaining land not less than one family holding. It is significant that the appellant had filled applications on similar lines against two other tenants also. After the decision of the tribunal had been given he did not pursue the matter further which means that he abandoned his claim with regard to the lands in their tenancies. Respondent No. 1 has a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satisfy the requirements of S. 42 (c) by demanding the entire area from respondent No. 1 alone. We, however, do not wish to express any final opinion on the scope and ambit of Section 42 (c) because we are satisfied that the appellant was not entitled to raise any condition based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court. We concur in the view of the tribunal that respondent. No. 1 became a statutory owner of the land in his tenancy by virtue of Section 46 (1) of the Act with effect from April 1, 1961 even though he did not take steps to purchase that land from the appellant under Section 43. The operation of Section 46 (1) could not be affected by the subsequent insertion of sub-section (14-A) in Section 43 which did not have retrospective operation.