Case: BAYAJI SAMBHU MALI @BORATE(D) THR. LRS Vs. NAZIR MOHAMMED B.ZARI THR.POA HOLD

4. To appreciate the question which arises before us, it is necessary we should first set out the facts according to the appellant which are related to the impugned order5. It is the case of the appellant that the first respondent – landlord claimed that he had attained majority on 10.09.1966 and filed an application bearing Tenancy Case No. 1 of 1967 before the Mamalatdar for his personal cultivation under Section 31(3) of the Act. The appellant claimed that he had received a notice issued by Tenancy Awwal Karkun and was directed to appear on 05.06.1967. His statement was recorded. By order dated 27.07.1967, the application filed by the landlord seeking possession was dismissed6. It is the further case of the appellant that the first respondent – landlord filed Tenancy Appeal (bearing No. 148 of 1967) before the Appellate Authority. The said appeal came to be dismissed on 09.03.1968. The respondent – landlord carried the matter further before the Tribunal by way of a Revision Application. The Maharashtra Revenue Tribunal vide order dated 22.04.1970 dismissed the Revision Application. It is thereafter the tenant- initiated proceedings under Section 32G of the Act in the year 1977. The Original Authority, however, took the view that the tenant did not comply with the provision of Section 32F of the Act which was challenged before the Sub-Divisional Officer who confirmed the order vide order dated 30.09.19787. The Tribunal, on a Revision filed by the appellant, set aside the order and remanded the matter for a fresh inquiry under Section 32G of the Act8. By order dated 20.07.1990, the Additional Tehsildar, after noticing certain discrepancies in the extract of Appeal Register relating to the proceeding commenced by the landlord found that the appellant had failed to prove that the landlord had exercised his right to recover possession under Section 31 of the Act and therefore the provision of Section 32F of the Act applies. Since the same had not been complied with, therefore the purchase in favour of the appellant was found to be ineffective9. The Appellate Authority, by order dated 24.04.1992, however, found otherwise and allowed the appeal filed by the appellant. The landlord challenged the order of the Appellate Authority. By order dated 09.01.1997, the Tribunal set aside the order of the Appellate Authority and confirmed the order passed by the Additional Tahsildar and found that the appellant had not complied with the provisions of Section 32F(1A). It is against the said order of the Tribunal, the appellant filed the writ petition. The High Court dismissed the writ petition and though the appellant filed a review petition, the same was also rejected.

Court's reasoning:
26. Now that we have the case as setup by learned counsel for the appellant and learned counsel for the respondents and also the statutory scheme, we must delve a little deeper into the facts and also apply the same in the backdrop of the scheme of the Act. The High Court has proceeded on the basis that the appellant has not given notice under Section 32F(1A). According to the High Court, it is mandatory. Learned counsel for the respondent also relies on that reasoning. On the other hand, the case of the appellant is that in accord with his case, there is no requirement to give a notice under Section 32F(1A). The landlord would point out that the Court may notice that it is the case of the appellant that Section 32F(1A) has been substantially complied with by the appellant31. However, subsection (3) of Section 31 contemplates that where a landlord is a minor or a widow or a person subject to mental or physical disability, the notice may be given and an application for possession under Section 29 may be made by the minor within one year from the date on which he attains majority. We are not concerned here with the other categories. Therefore, we can hold that if a landlord is a minor, he can invoke provisions of Section 29 and an application for possession under Section 29 can be made within one year from the date on which he attains majority. Section 31A provides for the conditions of termination of tenancy. It limits the right of the landlord to terminate a tenancy for cultivating the land personally under Section 31 by hedging the said right with certain conditions. The conditions also may not concern us. It is now that we must pass on to Section 3235. Before we discuss Section 32F, we deem it appropriate to refer to Section 32G. Section 32G deals with the power of the Tribunal to issue notice and determine the price of the land to be paid by the tenants. Section 32G(5) declares that in the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall determine the price of the land. The Tribunal is defined in Section 2(19) as the Agricultural Lands Tribunal under Section 6736. Section 32G inter alia provides that the Tribunal shall publish or cause to be published a public notice calling upon the persons who are deemed to have purchased the lands. This is apart from calling upon the landlords and other persons to appear on the date specified in the notice. The failure of the tenant to appear or a tenant who makes a statement that he is not willing to purchase the land will result in the Tribunal ordering in writing declaring that such tenant is not willing to purchase and the purchase is ineffective. If the tenant is willing to purchase, the Tribunal after giving an opportunity to the landlord and the tenant determine the price42. We are inclined to proceed in this case on the basis that the appellant had not given intimation within the meaning of Section 32F(1A) of the Act. On the other hand, the specific case which is pressed before us is that what is crucial is he must be treated as a deemed tenant having regard to the fact that the respondent – landlord unsuccessfully filed an application within the meaning of Section 29 read with Section 3243. At this juncture, we must focus on the facts given by the landlord more closely. As we have noticed, the case of the appellant is that the respondent filed an application under Section 29 and the same came to be rejected by order dated 27.07.1967. The landlord, according to the appellant, preferred an appeal which was rejected on 09.03.196846. From the orders which are produced before us in the revision application filed by the first respondent, the Maharashtra Tribunal has confirmed this finding. The revision application was dismissed47. It is thereafter that the appellant filed an application purporting under Section 32G. As we have noticed the matter travelled upto the Tribunal which remanded it to the Original Authority, it is thereafter that a new round of litigation commenced and which culminated in the impugned order of the High Court. In this round, the order of the Original Authority went against the appellant and it is found that the landlord became a major on 04.06.196648. He found that the provisions of Section 32F are applicable. The Original Authority further reasoned that it was necessary for the appellant to exercise a right of purchase by giving intimation under Rule 20 of the Rules, 1956 within two years from the date of attaining majority i.e. by 04.06.1968. This mandatory provision was not complied with by the tenant and he lost his right. Regarding the proceedings at the hands of the first respondent – landlord, it is stated as regards extract of appeal register, there is some discrepancy in the extract. It has mentioned that the date of lower court order is 27.07.1967 and the date of receipt is 19.06.1967 (apparently the date of receipt is the date of receipt of the appeal, in other words, the discrepancy is that the date of the appeal is earlier than the date of the order which is impugned in the appeal). It is further stated that there is no evidence by the first respondent to establish that the landlord terminated the tenancy and filed an application for possession of the suit land under Section 29 read with Section 31 after attaining majority. Therefore, it was for the tenant to exercise his right of purchase under Section 32F(1A) which he failed to exercise and thus resulted in the loss of his right. The Assistant Collector in the appeal filed by the appellant allowed his appeal. The Tribunal reversed the order of the Appellate Authority and restored the order of the Original Authority. The Tribunal has proceeded on the basis of the discrepancy in the appeal and the order is substantially on the lines of what the Original Authority has proceeded to hold. It is further pointed out that where the party is to produce the primary evidence it would be a certified copy and nothing else. The landlord has denied the filing of the case for possession and the tenant / appellant has failed to comply with the provisions of Section 32F. He has lost the right to purchase the suit land49. The High Court has adverted to the provisions and found there was a serious doubt expressed about the initiation of proceedings filed by the landlord and the learned Single Judge could not see how the Tehsildar and the Agricultural Land Tribunal have committed an error apparent on the face of the record or perversity in regard to the finding about giving intimation. It was further found that in the proceedings under Section 32G, it was permissible to the landlord to raise an issue of non compliance under Section 32F(1A) by the tenant50. It was reiterated that intimation to the landlord and the Tribunal under Section 32F(1A) is a mandatory pre-requisite51. The argument of the appellant that the proceedings after the remand must be treated as a continuation of an earlier round of litigation and there is a substantial compliance with Section 32F(1A) was not accepted. Interplay between Section 29 read with first proviso to Section 32(1) and Section 32F52. A perusal of the First Proviso to Section 32(1) read with Section 29 would show that when an application is filed by the landlord for possession and that application is rejected then the tenant is deemed to have purchased the land. With reference to the date on which the order rejecting the landlords application under section 29 read with Section 32 is passed. This is a case of deemed purchase. Section 32F, on the other hand, entitles the tenant to purchase. This is applicable in a situation where the landlord is a minor and on attaining majority though he has a period of one year from the date on which he attains majority to terminate the tenancy and he does not do so. Then the time starts ticking for the tenant from the expiry of the period of one year from which the minor landlord becomes major53. If there is no deemed tenancy within the meaning of Section 32 proviso read with Section 29 then the only alternative available for the tenant is to purchase the right by invoking provision of Section 32F. Both cannot exist together viz. if a person has a deemed status, there is no need for him to apply for purchase under Section 32F. Section 29 read with Sections 32 and 32F deal with two mutually exclusive situations. In a case covered by Section 29 read with Section 32(1) the tenant acquires the deemed status and in a case where a matter is covered by Section 32F, there is no deemed status for the tenant but he has to invoke provision of section 32F and issue a notice both to the landlord and to the Tribunal within the meaning of Section 32F(1A) and the matter has to be decided by the Authority54. In the facts of this case, if it is established that provisions contained in Section 32 read with Section 29 are applicable in so far as if we accept the case of the appellant that the respondent landlord had invoked Section 29 read with Section 32, being a case of a minor who became entitled to apply within a period of one year from the date of attaining majority and the application culminated in the rejection of his case then the appellant would acquire deemed status. If he acquires deemed status, then there could be no need to invoke Section 32F. Rather there is no need for him to again acquire a status which is conferred upon him by law by a deeming provision. Nothing more is required to be done by the tenant in such a case55. Coming to the merits of the matter, the appellant has produced material, the orders passed by the Appellate Authority and also by the Tribunal in Revision. It does show by invoking Sections 29 and 32, the first respondent had applied by projecting the case that he was born in 1948. The application filed by him stood rejected on the basis that the application was barred as birth register showed that he was born in 1947. Though the appellant has not produced certified copies earlier, the appellant has produced the same in the High Court after the judgment was delivered in the writ petition along with the review petition58. It is also relevant to note that it was not a case where the question related to postponed date within the meaning of the first proviso to Section 32(1), but the principle relating to deemed status under Section 32(1) will apply in respect to deemed status under the proviso63. No doubt, learned counsel for the respondent submitted that in the event the Court is inclined to take a view that the certified copies are to be looked into, the matter may be remitted back64. We are of the view that there is a wealth of documents showing that the respondent litigated the matter at three levels i.e. the application filed by the landlord dated 20.05.1967, the order passed in appeal and still further the order in revision before the Tribunal. Relying on some discrepancy as noted as regards the date of filing of the appeal and the date of the impugned order, the Authorities and the High Court should not have found against the appellant.