LAXMINARAYAN DIPCHAND MAHESHWARI & ORS.

'MAHARASHTRA REVENUE TRIBUNAL & ORS.

February 13, 1975

[1{. K. MATHEW AND P. K. GOSWAMI, J).]

Bombay Telfllncy and Agricultural Lands (Vidarbha Region) Act 1958 ss.43(14A), 46(1) and 49A(1)-Scopc o/-S.46, if protected by Art. 31A. •

Section 46 ( 1) of e Bombay Tt:nancy d Agricultural Lands (Vidarbha Re. glon) Act, 1958, prov1des that notw1thstandmg anything contained in Chapter Ill ·

(containing ss. 38 to 57) the OWJ}ership of nil lands held by tenants, which they are entitled to purchase from the1r landlords under any of the provisions of that chapter, shnll &nd trnnsferred to and vest in such tenants on and from April 1.

t961. from vhtch date such te'}ants shal~ be deemed to be the full owners of such C lands. Sectton 43 ( 14A) provides that 1f a tenant fails to exercise his right of

purchase under s. 41 etc. te land shall be deemed to be surrendered to the land lords; and s. 49A(l) prov1d~ at notwithstanding anything contained in ss..41

311d 46 etc., on .and. from Apnl 1. 1963 the ownership of all land held by 8 tenant

(being land whtch 1s not transferred to the tenant under s. 46 or which is not pur chased by him under ss. 41 and 50), shall vest in such tenant

The Agricultural Lands Tribunal took action under s. 46 read with s. 48 of D the Act for fixing the price of the land in possession of the respondent who was

personally cultivating the land as a cultivating tenant under the appellant-landlord. The appellant contested the proceedings without success before the authorities under the Act as well as in a writ petition in the High Court. In appeal tb lhb Court, it was contended (1) that s. 49A is not applicable to the present case

as the opening non-obstante clause of that section makes no reference to s. 43(14A) while it specifically mentions ss. 41 and 46; (2) Since the tenant had not exercised his right to plll'chase the land in question under s. 43(14A) the land shall be deemed to have been surrendered to the appellant and no question of statutory E transfer of ownership of the land would arise; and (3) Se.ction 46 is violative of

Arts. 14 and 19(1 )(f) of the Constitution and is not saved by Art. 31A.

. Dismissing the appeal,

HELD : (l) Section 49A is no.t attracted in the instant case since that section provides for ownershit> of.land which is. not transferred\to the tenant under s. 46 or which is not purchased by the tenant under s. 41 or 8. SO. The present case deals with compulsory transfer of ownership under s!· 46.

[539H) ·

(2) Under. s. 46 the tenants became full owners of the land~ by operaon of law and there is a statutory vesting of the lands in them. 11us legal ':esting by operation of s. 46 on and from April t, 1961, cannot be diested m tho .

a.)>sence of any clear provision under the Act. Section 43 (14A) lS a prospechve Provision and was introduced in the Act by amendment on March .1. 1~2

and has no application. [S40A-D] . ·

(3) Son ~6 has achieved th~ twin purpose of extinisbment of the rishl of the landlord tn the estate and conferment of the same nght u~ the tenant. nee that happens, there is, in one breath, extinguishment of the ngbt In favour

. 1-1

/ 1~ State Mld the conferment of the said right in favour of the tenant .. Alcle rlA ts therefore clearly applicable and it cannot be contruned that there ts vtola-

•on of Arts. 14 and 19. [541A-C]

CIVIL APPELLATE JURisDICTION: Civil Aooeal No. 2609 .of 1969.

pPeal by Special Leave from the jridgment and order dat<:d the ~?t 1 h ~ril, .1969 of the Bombay High Co~ (Nagpur BeQc~) m spea Ctvil Appln. No. 1039 of 1966.

W. S. BarUngay, Sheil Sethi and Ganpat Rai, for the appellants.

SUPREME COURT REPORTS [1975) 3 S.C.it.

E. C; Agarwala, for respondent no: 2. A.

M. C. Bhandare and~· P. Nayar,. for respondent No. 5.

The Judgment of the Court was dlivered by

OoSWAMI, J. This petition by special leave is directed agchinst tl:le judgment of the Bombay High Court rejecting the appellant-landlords' application .under articles 226 and 22 7 of the Constitution with regud B to a revenue matter under the Bombay Tenancy and Agricultur~~ Lands (Vidarbha :Region) , A.ct, 1958 (briefly the Act). The second respon":' dent (hereinafter the respondent) was the cultivating tenant .under the· . . appellant-landlords.

It was never in dispute in any of the earllier pro-· ceedings that the respondent was personally cultivating the land as a . tenant.

'. On a report of the patwari submitted on Aprll 6, 1963, the Agricultural Lands Tribuna], Malkapur, took action under section 46 r'ad with section 48 of the Act for fixing the price of the land in possession of the respondent. The appGllants contested the proceeding without f-access and an appeal preferred before the Special Deputy Collector for Tenancy met with the .same fate. The appellants then preferred a peti:tion of revision before the Maharashtra Revenue Tribunal, Nagpur. That also fatld. As noticed earlier eventually the High Court also rejected the writ applicatiou. The short que..c; tion that had been persistently rafsed in .all the earlier proceedings and has been strenuously urged by Dr.

Barlingay before us is whether in view of section 43(14A) of the Act the order of the Revenue Tribunal is legally sustainab1e.

In order to appreciate the above submission it js necessary to look at the relevant provisions.

Section 41 ( 1) reads as follows :-

. 41. ( 1,) :: "Notwithstanding anything to the cuntnu:y in any law, usage or contract but subject to the provisions of :sections 42 to 44 (both inclusive) a tenant other than an O<:cu pancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the Iandlor~ the land held by him as a tenant and qlltivated by him personally". ·

It iS not necessary to quote section 42 which provides for the extent of land which a tenant may purchase under section 41.

. section 43(1)(a) and (14A) upon which much stress has been Ia.id:may be set out : ·

43(1 )(a.). "A tenant who desires to exercise the right conferred by section 41 shall make an offer to the landlord stating the price at which he is prepared to purchase the land, such price not exceeding twelve times the rent payable by him and the depreciated value of any structures, wells and embankments constructed and permanent fixtures made and the value of any trees planted on the land by the landlord after the period of the last Settlement or where no such Settlement is made dl.lring the period of thirty years before the comc

mencement of this Act and the amount of the arrears or rent,· if any, lawfully due on the day on which the offeris made".

43 ( 14A). "If a tenant fails to exercise his right of purchase under section 41 in respect of any land or the purchase of any land becomes ineffective, the land shall be deemed to

~ have been surrendered to .tne landlord, and thereupon the provisions of sub-sections (1) and ( 2) of section 21 and Chapter VI snail apply to such land as if the bind was surrendered by the tenant under section 20''.

The next material section is 46 ( 1 ) which reads as under :-

46( 1 J. "Notwithstanding anything in this Chapter or any . law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this Chapter shall stand transferred to and vest in,. such tenants and from such date such tenants shall be deemed to be the full owners of such Jands :"

• * * Section 49A(l) may aJso be read; 49A(l). "Notwithstanding anything contained ill section 41 or 46, or any custom. usage. decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day ot April 1963 the ownership of all land held IJY a tenant (being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is \:ultivated by him personally, and ... "

Ill * * * :): :jc it is submitted by Dr. Barlingay that since the tenant had not exercised his right to purchase the land in question, under sulr.section ( 14A) of sectioa 43 the land shall be deemed to have been surrendered to the landlords and no question of statutory transfer of ownership of the !and would arise. He also submits that section 49A is not applicable in the instant case as the opening non-obstante clause of that section makes no reference to section 43 ( l4A) while specifically mentions section 41 and section 46.

W'! may at once say that section 49A is not attracted in the instant case since the section provides for ownership of land . which is not transferred to the tenant under section 46 or which is not purchased .by. the tenant under section 41 or section 50. It is admitted by the learned counsel that the land in question was not purchased by the tenant under . section 41 or under section 50. The only c<:mtention is that this land· cannot be the subject matter for c_ompulsory transfer of . owner8hip

under section 46.

. 540

SUPREME COURT REPORTS [1975] 3 s.c.n.

Sub-section 14(A) of section 43 was inserted by Maharashtra Act 2 of 1962 with effect from March 1, 1962. On the other hand section 46 ( 1) brings about a legal consequence with regard to transfer of 0\mcrship of land to tenants on and from April 1, 1961. Section 46 ( 1) provides clearly and unambiguously that notwithstanding anything con-

. tained in Chapter III (containing sections 38 to 57) the ownership of n: all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from Apdl 1, 1961) from which dae such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the t(nanted lands hy operation of law and. there is a statutory vesting of the lands in C them. This legal vesting by operation of sectioll 46 on and from April 1, 1961, cannot be divested io absence of any clear provision under the Act to that effect only by reference to a prospective provision like subsction ( 14A) of section 43 which came by an amendment much later on March 1, 1962. It is, therefore, not even necessary to consider the l.egal effect of the amalam of the three sections, namely, sub-:section ().,

~14A) of section 43, section 46 and section 49A in this appeal.

We are satisfied the revenue authorities were justified in taking action under section 46 read with section 48 and the order cannot be challenged as

unsutainabJe in law.

The learned counsel next contends that section 46 of the Act is violative of article 19 ( 1 ) (f) of the Constitution and is not saved by article '31A which is not. applicable. Counsel sutmil" that under section 46 there is no acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such righto;; in order to come within the saving provision of article 31A(l) (a). According 1:· to counsel the laud is transferred from the landlord and vests in the tenant by virtue of section 46. There is, therefore, no acquisition by the State of any estate or of any rights therein nor is there any extinguishment or modification of such rights in favour of the State. Section 46 and such other provisions in the Act are in furtherance of agrarian ccforms which arc one of the principal objects or the Act. The fact G: that section 46 in terms transfers the land from landlord to tenant and vests the ownership in the latter docs not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole

rea~ that there is no express mention of such acquisition by the State bJ terms. Th.e scheme underlying the provisions may be briefly stated.

The .State being the paramount owner of the lands had earlier granted II the land to thf~ tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the

State will bavt: to take is to extinguish the rights of the tenure holders under the paramount owner. lt is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the landlord in the estate and conferment of the same right upon the tenant. Once that happens there iS in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the . tenant. There is, therefore, no substance 'in the contention that article 31A is not applicable in this case to enable the

appellan~ to challenge the provision under article 19(1)(f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation ofarticlc

Ot 4 of the Constitution.

In the result the appeal fails and is dismissed with costs.

V.t>.S.

A flpeal disnu:r;'>ed ..