V.S. CHARATI

HUSSEIN NHANU JAMADAR (DEAD) BY L.RS.

NOVEMBER 18, 1998

[MRS. SUJATA V. MANOHARAND G.B. PATTANAIK, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948 : Sections 31(1), 32-F(IA), 43-IA, 43-IB and 43-IE-Scope of-Chapter III-A (As inserted by C Maharashtra Act 39 of 1964)-Ejfect of

Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 :

Landlord, a member of Armed Forces-Right to terminate tenancy- Appellant--landlord, a minor, filed application under section 31(1) read D with Section 29 for possession of personal cultivation-Dismissal of application-Consequently respondent became a deemed purchaser- Proceedings initiated by tenant for determination of purchase price dropped by Tribunal-Ground that as appellant landlord was minor tenant could not purchase the land-Tribunal's decision not challenged by tenant-In the E meantime Chapter Ill-A inserted in 1947 Act-Section 43-IB conferred benefits on members and ex-members of armed forces to terminate tenancy-Appellant, who on attaining majority joined armed forces served notice terminating tenancy----Landlord 's application allowed by S. D. 0. and upheld by Additional Commissioner-Writ preferred by tenant allowed by High Court-Appeal preferred by landlord-Held section 43-IB overrides the preceding provisions F of the Act~Jf the rights of the tenant as a purchaser have not been crystalised, the landlord belonging to the armed forces can claim benefits of the provisions of Chapter Ill-AA-In the present case, as Section 32-G proceedings were dropped, the rights of the respondent-tenant as a purchaser have not been crystalised-The very purpose of introducing Chapter III-A by the Amending Act of 1964 is to give additional benefits to those landlords who are members G of the armed forces-The appellant did not lose his rights under Chapter IIJ- AA because the proceedings under Section 32-G had been dropped, and the tenant remained only a deemed purchaser and could not be called a purchaser as contemplated under Section 43-IE-The High Court was not right in coming to the conclusion that the application was barred under H Section 43-1£.

Judgment-Not challenged by parties-Becomes final and binding on A the parties-A decision, simply because it may be wrong, would not thereupon become a nullity-It would continue to bind the parties unless set aside- 1 n this case order refusing deterl'l}ination of purchase price was not challenged-Therefore its effect cannot be ignored

Bhimrao Tatoba Sawant and Anr. v. Heramb Anant Patwardhan & B Ors., AIR (1986) Bombay 408, approved.

Nago Dattu Mahajan v. Smt. Yeshodabai Huna Mahajan, (1976) 78 BLR 427, cited.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1874 of 1984. C

From the Judgment and Order dated 8.10.90 of the Bombay High Court in S.C.A. No. 4762of1976.

S.V. Deshpande,_Pramit Saxena and Suhas for the Appellant.

P.R. Ramasesh and Ms. Promila Chaudhary for the Respondent.

The following Order of the Court was delivered :

The appellant is the landlord. He has claimed that in a partition effected

in the year 1956 in the joint .family of which he was a member, an area E admeasuring 1 acre 19 gunthas out of Revision Survey No. 8 of village Kudnoor in Gadhinglaj Taluka came to his share. This land is agricultural land of which the original respondent was a tenant at the material time.

On coming into force of the Bombay Tenancy & Agricultural Lands Act, 1948, the appellant filed an application under Section 31 (I) read with Section F 29 of the said Act for possession on the ground that he bona fide required the land for personal cultivation. Although the appellant was a minor at the time of the application, he chose to exercise his rights under Section 31(1).

This application was ultimately dismissed by the Mamlatdar on 29.5.1957 on the ground that under Section 31-B, there is a prohibition against termination G of tenancy if such termination would result in contravention of the provisions of Bombay Prevention of Fragmentation & Consolidation of Holdings Act,

1947. Therefore, by virtue of the dismissal of the appellant's application under Section 31 (I) under the provisions of Section 32(1) the respondent became a deemed purchaser of the said land on the postponed date 29.5.1957, the latter being the date on which the application of the appellant was dismissed. H

A :rhereafter proceedings under Section 32-G were taken for determination of purchase price. These proceedings, however, were dropped by the Agricultural Lands Tribunal on 31.5.1961 on the ground that the appellant was then a minor and the tenant could not purchase the land. The tenant did not take any steps to challenge the decision of the Tribunal dated 31.5.1961.

B On 20.10.1964, by Maharashtra Act 39 of 1964, Chapter III-AA was added in the said Act to confer certain benefits on the members and exmembers of the armed forces. Under this Chapter, Section 43-18 provides, inter alia, that it shall be lawful for a landlord at any time after commencement of the said Amendment Act, to terminate the tenancy of any land and obtain C possession thereof, but of so much of such land as will be sufficient to make the total land upto the ceiling area. Under sub-section (4) of Section 43-18, nothing in the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 shall affect the termination of any tenancy under this Chapter. The "landlord" for the purposes of this Chapter is defined in Section 43-1 A as a person who is or has ceased to be, a serving member of the armed D forces. The appellant, in the present case, joined the armed forces on 20.11.1965 after he attained majority on 7.11.1965. He served, on 11.4.1972, a notice terminating tenancy of the respondent under Section 43-18(2). In the proceedings which took place thereafter, liis application was allowed by the Sub-Divisional Officer on 31.3.1975. An appeal from this order to the Additional E Commissioner was dismissed on 25.4.1976. The respondent-tenant thereupon moved the High Court by way of a writ petition which has been allowed by the impugned judgment & order dated 8.10.1980. Hence, the present appeal.

The: short question that requires consideration is whether in view of the dismissal of the original application filed by the appellant-landlord under F Section 31 (I) on 29 .5 .1967, it was open to the appellant to avail of the provisions of Chapter III-AA. Under Section 43-18, it is provided that notwithstanding anything contained in the foregoing provisions of this Act, but subject to the provisions of this Section, it shall be lawful for a landlord (a member or ex-member of the armed forces)' at any time after the commencement of the Tenancy and Agricultural Lands (Amendment) Act, G 1964 to terminate the tenancy of any land and obtain possession thereof in the manner set out in the Section. Section 43-18, therefore, overrides the -< preceding provisions of the said Act. Section 43-lE which forms a part of Chapter III-AA, provides as follows:

"Sec.43-IE: Nothing in this Chapter shall apply in relation to land, H which before the commencement of the Tenancy and Agricultural

.... , •

•Lands Laws (Amendment) Act, 1964 is purchased by any tenant A under the provisions of Chapter IJI."

According to the appellant, Section 43-IE will come into operation only in those cases where there is a completed purchase in favour of the tenant.

It will not protect a tenant who is only a deemed purchaser, but in respect of whom proceedings under Section 32G have not been completed. The B appellant therefore contends that as a member of the armed forces he can avail of Chapter Jll-AA and Section 43-IB forming a part thereof, to terminate the tenancy of the respondent and obtain possession of the said land.

According to the respondent, Section 43-IE will protect him against Chapter III-AA provisions because he has become a deemed purchaser on 29.5.1957. C

This issue came up for consideration before a Division Bench of the Bombay High Court in case of Bhimrao Tatoba Sawant & Anr. v. Heramb Anant Patwardhan & Ors., reported in AIR (1986) Bombay 408. While considering the scheme of Chapter Ill-AA, the Bombay High Court held that ·• -"' Section 43-IE would come into operation only ifthere has been, so as to say, D a completed purchase of the land by the tenant under the provisions of Chapter Ill. It will not be possible to introduce, while interpreting that Section, the theory of "deemed purchase" and its ineffectiveness under certain circumstances. What is material is that the vested rights flowing from the purchase of the land by the tenant under Chapter JlI should not be disturbed.

If the rights of the tenant as a purchaser have not been crystalised, the E landlord belonging to the armed forces can claim benefit of the provisions of chapter Ill-AA. In the present case, as Section 32G proceedings were dropped, the rights of the respondent-tenant as a purchaser have not been crystalised.

The very purpose of introducing Chapter III-AA by the Amending Act of 1964 is to give additional benefits tu those landlords who are members of the F armed forces. The High Court has rightly observed in connection with Chapter Ill-AA as follows:

"'All these provisions would be set at naught if we accept the contention of Shri Bhonsale that under Chapter III a tenant would be the purchaser in every case except where the purchase has become G ineffective under S.32G(3) or S.32F. It is material to note that wherever the purchase has become ineffective under these two provisions, it is the landlord who has a first preference to get possession of the land.

This right has been conferred on the landlord under S.32P. What is important is that under that section the landlord, whether he is a member of the armed forces or not, is entitled to have his first H

preference. It would thus mean that the provisions of Chapter Ill-AA could not be implemented to the benefit of the landlord belonging to the armed forces if we record a finding that prior to the introduction of Chap. III-AA on the statute book the tenant should be held to have become the owner except under the two contingencies covered by ss. 32G(3) and 32F. In our opinion, the interpretation sought to be put by Shri Bhonsale on S.43-IE would take away all the benefits which the Legislature intended to confer oh the landlords who have been serving as members of the armed forces. ft is material to note that S.43-IE uses the words 'purchase by the tenant'. It appear that the Legislature has purposefully chosen not to use the words 'deemed to have been purchased by the tenant' under Chap. Ill. The words 'purchased by 1he tenant' will have to be interpreted in such a manner that the intention of the Legislature to give additional benefits to the landlords belonging to the armed forces is implemented. This is permissible if there is no violence to the language used by the Legislature and the meaning of the phrase 'purchased by the tenant' can be properly understood as not to cover 'deemed to have been purchased by the tenant'."

(underlining ours)

The appellant, therefore, in the present case, did not lose his rights E under Chapter Ill-AA because the proceedings under Section 32-G had been dropped, and the tenant remained only a deemed purchaser and could not be called a purchaser as contemplated under Section 43-IE.

It is submitted by the respondent that the Agricultural Lands Tribunal was not right in dropping proceedings under Section 32-G: Its order of F 31.5.1961 is bad in law. He relied upon a decision of the Bombay High Court

in the case of Nago Dattu Mahaj:in v. Smt. Yeshodabai Huna Mahajan, reported in ( 1976) 78 BLR 427 where this Court has held that under Section 31 th<: landlords have a choice to avail of one of the two provisions of resumption, namely, either Section 31(1) or Section 31(3). No landlord can G avail of both the provisions. Learned counsel fo.r the respondent, therefore, contends that in the present case, the appellant having exercised his choice under Section 31 ( l ), could not have urged in the proceedings under Section 32G his disability as a minor under Section 31(3). The order of31.5.1961 of the Agricultural Lands Tribunal, however. was not challenged by the respondent. The order of 31.5.1961 has become final and the decision rendered H by the Agricultural Lands Tribunal as between the appellant and the

V.S. CHARA Tl 11. HUSSEINNHANU JAMADAR 35

respondent is binding on both the parties. A decision simply because it may A be wrong, would not thereupon become a nullity. It would continue to bind the parties unless set aside. The effect of the decision of 31.5.1961 on the parties, therefore, cannot be ignored. In the present case, since the tenant could not complete his purchase by reason of the proceedings under Section 32G being dropped, he cannot now contend that the decision has no legal effect or that the proceedings under Section 32G ought to have been completed B and, therefore, he should be looked upon as a purchaser.

The appellant has also drawn our attention to Section 32F(IA) under which, if a tenant holding land from a landlord who was a minor has not been given intimation at the commencement of the Bombay Tenancy and C Agricultural Lands Amendment Act, 1969, but being in possession of the land on such commencement, is desirous of exercising the right conferred on him under sub-section ( 1 ), he may give such intimation to the landlord and the Tribunal within a period of two years from the commencement of the Act.

Therefore, the tenant was given an additional opportunity to give intimation after the commencement of the Amendment Act of 1969. Even this opportunity D was not availed of by the tenant. The respondent has thus continued as a tenant. His tenancy can be terminated under Section 43-IB.

In the premises, the High Court was not right in coming to the conclusion that the application of the appellant was barred under Section 43-IE. We, therefore, allow this appeal, set aside the impugned judgment and order of the E High Court and restore the order of the Sub-Divisional Officer as confirmed by the Additional Commissioner. There will, however, be no order as to costs.

T.N.A.

Appeal allowed.