Hon'ble Mr. Justice K.M. Joseph
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1644-1645 of 2019
[Arising out of SLP(C)No(s).13627-13628 of 2012]
BAYAJI SAMBHU MALI @
BORATE(D) THROUGH LRS. APPELLANT(S)
VERSUS
NAZIR MOHAMMED BALAL ZARI
THROUGH GPA HOLDER & ORS. RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. Leave granted.
2. By the impugned judgment and order, the High
Court has dismissed the writ petition filed by the
appellant under Article 227 of the Constitution
against the order dated 09.01.1997 of the Maharashtra
Revenue Tribunal and the review petition filed against
the same.
3. These appeals arise under the Bombay Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred to
as ‘the Act’). The appellant is the tenant and the
1
respondent is the landlord. On what is described as
Tillers day i.e. 01.04.1957, the landlord was a minor.
The controversy, which we are called upon to resolve,
is whether the appellant is a deemed purchaser within
the meaning of Section 29 read with Section 32 of the
Act or whether this is a case under Section 32F of the
Act under which the tenant is obliged
to give a notice under Section 32F(1A).
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 order.
5. 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
2
was dismissed.
6. 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 tenantinitiated 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 30.09.1978.
7. 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 Act.
8. By order dated 20.07.1990, the Additional
Tehsildar, after noticing certain discrepancies in the
3
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 ineffective.
9. 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.
10. We have heard learned counsel for the parties.
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11. Learned counsel for the appellant contended that
this is a case where the matter should be treated as
governed by the provisions under Section 29 read with
Section 31 of the Act. In a case governed by these
provisions, learned counsel pointed out that there is
no requirement of issuing notice within the meaning of
Section 32F. He relied on Tukaram Maruti Chavan v.
Maruti Narayan Chavan (D) by Lrs. and Ors. (2008) 9
SCC 358 and Sudam Ganpat Kutwal v. Shevantabai
Tukaram Gulumkar (2006) 7 SCC 200.
12. It is clear that the landlord had filed an
application under Section 29 of the Act and the said
application was rejected and the rejection was upheld
right upto the Tribunal in Revision.
13. These documents have been brushed aside as also
the legal effect of the orders passed. He would
further contend that though he had produced certified
copies along with review petition in the High Court
even then the same were not considered. He would
maintain that in a case where there is a deemed
purchase, there is no requirement to issue a notice
under Section 32F(1A).
5
14. Per contra, learned counsel for the respondent
would support the order of the High Court. He would
contend that it is mandatory to give a notice under
Section 32F(1A). Without giving such a notice, it is
not open to contend that he must be deemed to have
purchased the right. He would also point out that the
case of the respondent is that the application was not
accepted since the certified copies were produced only
after the dismissal of the writ petition that too in
the review. Therefore, no store can be laid by the
said documents. He also contends that it was
appellant’s case that there was substantial compliance
of Section 32F(1A) in the High Court.
15. Time is now apposite to make a survey of
statutory scheme of the Act. The Act was enacted in
the year 1948. We must advert to the following
provisions which we think are relevant for the
purposes of this case.
16. Section 29 deals with Procedure of taking
possession which, inter alia, reads as follows:
29. (1) A tenant or an agricultural
labourer or artisan entitled to
possession of any land or dwelling house
under any of the provisions of this Act
6
may apply in writing for such possession
to the Mamlatdar. The application shall
be made in such form as may be
prescribed [and within a period of two
years from the date on which the right
to obtain possession of the land or
dwelling house is deemed to have accrued
to the tenant, agricultural labourer or
artisan, as the case may be].
(2) [Save as otherwise provided in subsection (3A), no landlord] shall obtain
possession of any land or dwelling house
held by a tenant except under an order
of the Mamlatdar. For obtaining such
order he shall make an application in
the prescribed form [and within a period
of two years from the date on which the
right to obtain possession of the land
or dwelling house, as the case may be,
is deemed to have accrued to him].
(3) On receipt of application under subsection (1) or (2) the Mamlatdar shall,
after holding an inquiry, pass such
order thereon as he deems fit :
[Provided that where an application
under sub-section (2) is made by a
landlord in pursuance of the right
conferred on him under section 31, the
Mamlatdar shall first decide, as
preliminary issues, whether the
conditions specified in clauses (c) and
(d) of section 31A and sub-sections (2)
and (3) of section 31B are satisfied. If
the Mamlatdar finds that any of the said
conditions is not satisfied, he shall
reject the application forthwith].
17. Section 31 deals with Landlord’s right to
terminate tenancy for personal cultivation and non
7
agricultural purpose which reads as follows:
31. (1) Notwithstanding anything
contained in sections 14 and 30 but
subject to sections 31A to 31D (both
inclusive), a 3 [landlord (not being a
landlord within the meaning of Chapter
III-AA) may], after giving notice and
making an application for possession as
provided in sub-section (2), terminate
the tenancy of any land (except a
permanent tenancy), if the landlord
bona-fide requires the land for any of
the following purposes :–– (a) for
cultivating personally, or
(b) for any non-agricultural purpose.
(2) The notice required to be given
under sub-section (1) shall be in
writing, shall state the purpose for
which the landlord requires the land and
shall be served on the tenant on or
before the 31st day of December 1956. A
copy of such notice shall, at the same
time, be sent to the Mamlatdar. An
application for possession under section
29 shall be made to the Mamlatdar on or
before the 31st day of March 1957.
(3) Where a landlord is a minor, or a
widow, or a person subject to mental or
physical disability then such notice may
be given [and an application for
possession under section 29 may be
made,]––
(i) by the minor within one year from
the date on which he attains majority;
(ii) by the successor-in-title of a
widow within one year from the date on
which her interest in the land ceases to
exist;
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(iii) within one year from the date on
which mental or physical disability
ceases to exist;
[Provided that where a person of such
category is a member of a joint family,
the provisions of this sub-section shall
not apply if at least one member of the
joint family is outside the categories
mentioned in the sub-section unless
before the 31st day of March 1958 the
share of such person in the joint family
has been separated by metes and bounds
and the Mamlatdar on inquiry, is
satisfied that the share of such person
in the land is separated having regard
to the area, assessment, classification
and value of the land, in the same
proportion as the share of that person
in the entire joint family property, and
not in a large proportion].
18. 31A. The right of a landlord to terminate a
tenancy for cultivating the land personally under
section 31 shall be subject to the following
conditions:–
------
(c) The income by the cultivation of the
land of which he is entitled to take
possession is the principal source of
income for his maintenance.
(d) The land leased stands in the record
of rights or in any public record or
similar revenue record on the 1st day of
January 1952 and thereafter during the
9
period between the said date and the
appointed day in the name of the
landlord himself, or of any of his
ancestors 2 [but not of any person from
whom title is derived, whether by
assignment or Court sale or otherwise],
or if the landlord is a member of a
joint family, in the name of a member of
such family].
19. Section 32 deals with Tenants deemed to have
purchased land on tillers’ day. It reads as follows:
32. [(1)] On the first day of April 1957
(hereinafter referred to as “the
tillers’ day”) every tenant shall,
[subject to the other provisions of this
section and the provisions of] the next
succeeding section, be deemed to have
purchased from his landlord, free of all
encumbrances subsisting thereon on the
said day, the land held by him as
tenant, if–
(a) such tenant is a permanent tenant
thereof and cultivates land personally;
(b) such tenant is not a permanent
tenant but cultivates the land leased
personally; and
(i) the landlord has not given notice of
termination of his tenancy under section
31; or
(ii) notice has been given under section
31, but the landlord has not applied to
the Mamlatdar on or before the 31st day
of March 1957 under section 29 for
obtaining possession of the land; [or]
[(iii) the landlord has not terminated
10
his tenancy on any of the grounds
specified in section 14, or has so
terminated the tenancy but has not
applied to the Mamlatdar on or before
the 31st day of March 1957 under section
29 for obtaining possession of the lands
] :
Provided that if an application made by
the landlord under section 29 for
obtaining possession of the land has
been rejected by the Mamlatdar or by the
Collector in appeal or in revision by
the [Maharashtra Revenue Tribunal] under
the provisions of this Act, the tenant
shall be deemed to have purchased the
land on the date on which the final
order of rejection is passed. The date
on which the final order of rejection is
passed is hereinafter referred to as
“the postponed date” : [Provided
further that the tenant of a landlord
who is entitled to the benefit of the
proviso to sub-section (3) of section 31
shall be deemed to have purchased the
land on the 1st day of April 1958, if no
separation of his share has been
effected before the date mentioned in
that proviso].
20. Section 32A provides that Tenants are deemed to
have purchased upto ceiling area.
32A. A tenant shall be deemed to have
purchased land under section 32,- (1) in
the case of a tenant who does not hold
any land as owner but holds land as
tenant in excess of the ceiling area,
upto the ceiling area;
(2) in the case of a tenant who holds
land as owner below the ceiling area,
11
such part of the land only as will raise
his holding to the extent of the ceiling
area.
21. Section 32B provides for the circumstances in
which the tenants are not deemed to have purchased
lands. It provides that if the tenant holds land
partly as owner and partly as tenant but the area of
the land held as owner is equal to or exceeds
ceiling area, he shall not be deemed to have
purchased the land held by him as a tenant under
Section 32.
22. Section 32C permits the tenants entitled to
choose lands to be purchased. Section 32D
contemplates when tenants are deemed to have purchased
fragments. The balance of any land, if any, after the
purchase by the tenant under Section 32 shall be
disposed of in the manner laid down in Section 15 as
if it were land surrendered by the tenant. This is
the mandate of Section 32E.
23. Section 32F deals with Right of tenant to
purchase where landlord is minor etc. which reads as
follows:
32F. (1) Notwithstanding anything
12
contained in the preceding sections,–
(a) where the landlord is a minor, or a
widow, or a person subject to any mental
or physical disability, the tenant
shall have the right to purchase such
land under section 32 within one year
from the expiry of the period during
which such landlord is entitled to
terminate the tenancy under section 31
[and for enabling the tenant to exercise
the right of purchase, the landlord
shall send an intimation to the tenant
of the fact that he has attained
majority, before the expiry of the
period during which such landlord is
entitled to terminate the tenancy under
section 31] :
[Provided that where a person of such
category is a member of a joint family,
the provisions of this sub-section shall
not apply if at least one member of the
joint family is outside the categories
mentioned in this sub-section unless
before the 31st day of March 1958 the
share of such person in the joint family
has been separated by metes and bounds
and the Mamlatdar on inquiry is
satisfied that the share of such person
in the land is separated, having regard
to the area, assessment, classification
and value of the land, in the same
proportion as the share of that person
in the entire joint family property and
not in a larger proportion].
(b) where the tenant is a minor, or a
widow, or a person subject to any mental
or physical disability or a serving
member of the armed forces, then subject
to the provisions of clause (a), the
right to purchase land under section 32
may be exercised–
(i) by the minor within one year from
the date on which he attains majority;
13
(ii) by the successor-in-title of the
widow within one year from the date on
which her interest in the land ceases to
exist;
(iii) within one year from the date on
which the mental or physical disability
of the tenant ceases to exist;
(iv) within one year from the date on
which the tenant ceases to be a serving
member of the armed forces :
[Provided that where a person of such
category is a member of a joint family,
the provisions of this sub-section shall
not apply if at least one member of the
joint family is outside the categories
mentioned in this sub-section unless
before the 31st day of March 1958 the
share of such person in the joint family
has been separated by metes and bounds
and the Mamlatdar on inquiry is
satisfied that the share of such person
in the land is separated, having regard
to the area, assessment, classification
and value of the land, in the same
proportion as the share of that person
in the entire joint family property, and
not in a larger proportion].
[(1A) A tenant desirous of exercising
the right conferred on him under subsection (1) shall give an intimation in
that behalf to the landlord and the
Tribunal in the prescribed manner within
the period specified in that subsection] :
[Provided that, if a tenant holding land
from a landlord (who was a minor and has
attained majority before the
commencement of the Tenancy and
14
Agricultural Lands Laws (Amendment) Act,
1969) has not given intimation as
required by this sub-section but being
in possession of the land on such
commencement is desirous of exercising
the right conferred upon him under subsection (1), he may give such intimation
within a period of two years from the
commencement of that Act].
(2) The provisions of sections 32 to 32E
(both inclusive) and sections 32G to 32R
(both inclusive) shall, so far as may be
applicable, apply to such purchase.
24. Section 32G reads as follows:-
32G. (1) As soon as may be after the
tillers’ day the Tribunal shall publish
or cause to be published a public notice
in the prescribed form in each village
within its jurisdiction calling upon –
(a) all tenants who under section 32 are
deemed to have purchased the lands,
(b) all landlords of such lands, and
(c) all other persons interested
therein, to appear before it on the date
specified in the notice. The Tribunal
shall issue a notice individually to
each such tenant, landlord and also, as
far as practicable, other persons
calling upon each of them to appear
before it on the date specified in the
public notice.
(2) The Tribunal shall record in the
prescribed manner the statement of the
tenant whether he is or is not willing
to purchase the land held by him as
tenant.
15
(3) Where any tenant fails to appear or
makes a statement that he is not willing
to purchase the land, the Tribunal shall
by an order in writing declare that such
tenant is not willing to purchase the
land and that the purchase is
ineffective :
Provided that if such order is passed in
default of the appearance of any party,
the Tribunal shall communicate such
order to the parties and any party on
whose default the order was passed may
within 60 days from the date on which
the order was communicated to him apply
for the review of the same.
(4) If a tenant is willing to purchase,
the Tribunal shall, after giving an
opportunity to the tenant and landlord
and all other persons interested in such
land to be heard and after holding an
inquiry, determine the purchase price of
such land in accordance with the
provisions of section 32H and of subsection (3) of section 63A :
[Provided that where the purchase price
in accordance with the provisions of
section 32H is mutually agreed upon by
the landlord and the tenant, the
Tribunal after satisfying itself in such
manner as may be prescribed that the
tenant’s consent to the agreement is
voluntary may make an order determining
the purchase price and providing for its
payment in accordance with such
agreement].
(5) In the case of a tenant who is
deemed to have purchased the land on the
postponed date the Tribunal shall, as
soon as may be, after such date
16
determine the price of the land.
(6) If any land which, by or under the
provisions of any of the Land Tenures
Abolition Acts referred to in Schedule
III to this Act, is regranted to the
holder thereof on condition that it was
not transferable, such condition shall
not be deemed to affect the right of any
person holding such land on lease
created before the regrant and such
person shall as a tenant be deemed to
have purchased the land under this
section, as if the condition that it was
not transferable was not the condition
of regrant.
25. Section 32H provides for the purchase price and
its maxima.
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
17
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
appellant.
27. Section 29(2) contemplates that no landlord shall
obtain possession of any land or dwelling house held
by a tenant except under an order of the Mamlatdar.
He is obliged to make an application within two years
from the date on which the right to obtain possession
of the land or dwelling house, as the case may be is
deemed to have accrued on him. Subsection (3)
provides that the Mamlatdar is to pass an order after
conducting such inquiry. In the proviso, it may be
noticed that where an application under subsection (2)
is made by a landlord in pursuance of the right
conferred upon the landlord under Section 31, in such
case, the Mamlatdar is to first decide preliminary
issues which include whether the conditions in clauses
(c) and (d) of Section 31A are satisfied. He must
also be convinced that the conditions mentioned under
subsections (2) and (3) of Section 31B are fulfilled.
18
He is dutybound to reject the application, if the
conditions therein are not fulfilled. With the rest
of the provisions contained in Section 29, we may not
be detained. Therefore, now coming to Section 31,
Section 31 falls under Chapter III titled Special
Rights and Privileges of Tenants and Provisions for
Distribution of Land for Personal Cultivation.
28. Chapter III is divided in two parts. Section 31
falls under Part (I) which provides - Termination of
Tenancy for Personal Cultivation and Non Agricultural
Use. It will be noticed that Section 32 and other
provisions which follow the same fall under Part (II)
which deals with Purchase of Land by Tenants.
29. Reverting back to Section 31, it contemplates
that subject to Sections 31A to 31D both inclusive and
notwithstanding whatever may be contained in Sections
14 and 30, a landlord after giving notice and making
an application for possession as provided in
subsection (2) can terminate the tenancy of any land
barring permanent tenancy, should he require the land
for cultivating personally or for any non agricultural
purpose.
19
30. Subsection (2) provides that a notice is to be
given in writing. It shall state the purpose for
which the landlord requires the land. It is to be
served on or before 31st Day of December 1956. A copy
of the said notice is to be sent to the Mamlatdar. It
is thereafter clearly provided that an application for
possession under Section 29 is to be made to the
Mamlatdar on or before 31st day of March 1957.
31. 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
20
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 32.
32. Section 32 declares that on Tillers day which is
the First day of April 1957, every tenant shall be
deemed to have purchased from his landlord free of all
encumbrances subsisting thereon on the said day the
land held by him. There are two limitations which can
be culled out from the said provisions. A declaration
under Section 32 is made subject to the other
provisions of the said section. It is further made
dependent on the operation of the next succeeding
sections. In other words, the provisions which follow
Section 32 will control the application of Section 32.
33. What is relevant to us is the first proviso of
Subsection (1) which is relied upon by the appellant.
This came to be added by the Bombay Act 38 of 1957.
If it is broken down, it provides as follows:
1. The application is made by the
landlord under Section 29 for obtaining
possession of the land;
2. it has been rejected by the
Mamalatdar or by the Collector in appeal
21
or in revision by the Maharashtra
Revenue Tribunal. [The Maharashtra
Revenue Tribunal has been brought in by
way of Maharashtra Act 23 of 2007 with
effect from 13.12.2007];
3. if the aforesaid elements are
satisfied the proviso declares that the
tenant shall be deemed to have purchased
the land on the date on which the final
order of rejection is passed;
4. the date on which the final order of
rejection is passed is to be referred to
as 'the postponed date'.
34. Since Section 32 has been made subject to the
next succeeding sections, it will be noted that the
next succeeding sections in the form of Sections 32A,
32B, 32C and 32D provide for the conditions and
limitations subject to which the deeming provision
operates. In other words, the deemed right which is
conferred on a tenant under Section 32 will be enjoyed
subject to the restrictions under Sections 32A to 32D.
35. 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
22
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 67.
36. 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 price.
37. Reverting back to Section 32F, it begins with a
non obstante clause. The non obstante clause is qua
anything which is stated in the preceding sections.
38. It provides inter alia for a right of the tenant
to purchase where the landlord is a minor tenant. In
23
such a case, he would have the right to purchase
within a period of one year under Section 32. This
period of one year will begin to run from the expiry
of the period during which the landlord is entitled to
terminate the tenancy under Section 31.
39. Section 31 provides for a period of one year from
the date on which the minor attains majority when the
landlord is a minor for him to give notice and
followed by an application under Section 29.
40. Section 32F further provides that the landlord is
obliged to send an intimation to the tenant of the
fact that he has attained majority before the expiry
of the period during which the landlord can terminate
the tenancy under Section 31.
41. We will illustrate working of the Section with a
concrete example.
If a landlord is a minor and he attains
majority as on 01.01.1966 then under Section 31,
he will get a period of one year for terminating
the tenancy. The period will run out on
31.12.1966. The landlord is obliged to intimate
his tenant about the fact that he has attained
24
majority before 31.12.1966. Thereupon, the tenant
if he wishes to purchase, he would have the right
to give a notice within a period of one year from
31.12.1966. Thus, he would have the period till
30.12.1967. As to how the intimation is to be
given under subsection (1) of Section 32F is
provided in Section 32F(1A). Section 32F(1A)
provides he must give an intimation about his
exercising the right under subsection (1) both to
the landlord and the Tribunal in the manner
prescribed within the period mentioned in
subsection (1) which we have explained by way of
an illustration. The proviso which was added by
the Act 49 of 1969 contemplates an extended period
of giving the intimation by a tenant who is in
possession with which we may not be concerned.
42. 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
25
that the respondent – landlord unsuccessfully filed an
application within the meaning of Section 29 read with
Section 32.
43. 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 09.03.1968.
44. In the order dated 09.03.1968, the Appellate
Authority found glaring loopholes in the evidence of
the first respondent. On the one hand, there was an
entry regarding the date of birth which was in the
school register and on the other hand there was an
entry in the birth register. One date of birth was
shown as 10.09.1947 whereas the other date of birth
was shown as 04.06.1948. The school certificate shows
that the date of birth is 04.06.1948 where as the date
given in the birth register is 10.09.1947.
45. The application was filed by the first respondent
26
- landlord on 20.05.1967. If the date of birth is
taken as 04.06.1948, which was apparently pressed upon
by the first respondent, the application dated
20.05.1967 would have been within time. Whereas if
the date of birth is taken as 10.09.1947, the
application filed by the respondent was clearly time
barred. The Authority did not accept the version of
the landlord.
46. 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 dismissed.
47. 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 04.06.1966.
48. He found that the provisions of Section 32F are
27
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)
28
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 land.
49. 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
29
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 tenant.
50. It was reiterated that intimation to the landlord
and the Tribunal under Section 32F(1A) is a mandatory
pre-requisite.
51. 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 32F
52. 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 landlord's
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
30
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 major.
53. 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
31
be decided by the Authority.
54. 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 case.
55. 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
32
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 petition.
56. A reference to case law does not advance the case
of the respondents. In Amrit Bhikaji Kale and Ors.
v. Kashinath Janardhan Trade and Anr. (1983) 3 SCC 437
which related to the proceedings under the Same Act,
this Court held as follows:
“On the tillers’ day the landlord’s
interest in the land gets extinguished
and simultaneously by a statutory sale
without anything more by the parties,
the extinguished title of the landlord
is kindled or created in the tenant.
That very moment landlord-tenant
relationship as understood in common law
of Transfer of Property Act comes to an
end. The link and chain is broken. The
absent non-cultivating landlord ceases
to have that ownership element of the
land and the cultivating tenant, the
tiller of the soil becomes the owner
thereof.
Section 32F has an overriding effect
over Section 32 as it opens with a non
obstante clause. The combined effect of
Sections 32F and 32 is that where the
landlord is under no disability as
envisaged by Section 32F the tenant of
33
such landlord by operation of law would
become the deemed purchaser by where the
landlord is of a class or category as
set out in Section 32F, the date of
compulsory sale would be postponed as
therein provided. Since ‘T’, the
landlord was under no disability and was
alive on April 1, 1957 his tenant ‘J’
became the deemed purchaser on the
tillers’ day. Therefore, the
relationship of landlord and tenant
between ‘T’ and ‘J’ came to be
extinguished and no right could be
claimed either by ‘T’ or anyone claiming
through him such as ‘A’ or the present
purchasers on the footing that they are
the owners of the land on or after April
1, 1957.”
57. In Anna Bhau Magdum, Since Deceased by LRs v.
Babasaheb Anandrao Desai (1995) 5 SCC 243, the Court,
no doubt, held that requirement under Section 32F(1A)
was mandatory. There cannot be any automatic purchase
under Section 32 read with Section 32G in such a case.
However, it is relevant to note para 15.
“15. The submission of Shri Wad is that
if express statement made by the tenant
could not stand in the way of his
availing the right conferred by the Act,
there is no reason why merely because of
inaction on his part a tenant should be
deprived of the right. The observations
aforementioned made in Amrit Bhikaji
Kale have to be read in the context of
the facts of that case where it was
found that the landlord who was major
and was under no disability, was alive
34
on 1-4-1957 and the provisions of
Section 32F were not attracted and there
was deemed purchase of the land by the
tenant by virtue of Section 32. The
subsequent statement made by the tenant
in proceedings before the Aval Karkoon
were, therefore, held to be of no avail.
The position in the instant case is,
however, different. The respondent –
landlord was a minor on 1-4-1957 and the
case was governed by Section 32F and
there has been non compliance of subsection (1A) of Section 32-F.”
58. 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 proviso.
59. In Sudam Ganpat Kutwal v. Shevantabai Tukaram
Gulumkar (2006) 7 SCC 200, the landlord filed an
application under Section 31 read with Section 29 of
the Act. The claim was accepted and possession of
half of the land was directed to be delivered for a
bona fide cultivation. The other half was to remain
with the tenant. Thereafter, the landlady filed an
application seeking possession of the remaining half
of the land alleging certain defaults by the tenant.
35
Later, the successor-in-interest of the
landlady filed an application under Section 32(P)
read with Section 32F for declaration that the
deemed statutory purchase by the tenant was void
as there was no required notice under Section
32F(1A) of the Act. This Court referred to the
provisions and culled out its conclusions in para
23, which read, inter alia, as follows:
“23. The position as disclosed by a
combined and harmonious reading of
Sections 31, 32, 32F and 32G may be
stated thus :
a) Where the landlord has not served on
the tenant, a notice of termination (as
stated in clause (b) of sub-section (1)
of section 32), the tenant is deemed to
have purchased the land on the tillers
day (1.4.1957);
b) Where the tenant is deemed to have
purchased the land on the Tillers Day
(1.4.1957), the Lands Tribunal is
required to issue notice and determine
the price of land to be paid by tenant.
Where there is a deemed purchase, but
the right to purchase is postponed, the
Land Tribunal shall determine the price
of land, as soon as may be after the
postponed date;
--------
f) Where a landlord, who is a widow,
36
exercises her right of termination and
secures possession of part of the
tenanted land for personal cultivation
under section 31(1) of the Act, then
there is no question of her successorin-title giving a notice of termination
within one year from the date on which
the widow’s interest ceases to exist.
When section 31 (3) ceases to apply,
section 32F also will not apply and
there is no need for the tenant to give
any intimation under section 32F(1A).”
60. In Tukaram Maruti Chavan v. Maruti Narayan
Chavan (Dead) by LRs and Others (2008) 9 SCC 358, the
question was whether the appellant could exercise
right to purchase in the absence of intimation
under Section 32F(1A) to the landlord and to the
Tribunal.
61. The original landlady who was a widow died in
1964 leaving behind him two sons. The original tenant
initiated proceedings under Section 32G which was
ordered in his favour.
62. The Court was of the view that notice under
Section 32F(1A) is mandatory. However, the Court also
inter alia held as follows:
“The required notice is not mandatory
only in a case when a widow landlady has
already exercised her right under
Section 31(1) i.e. when during her
37
lifetime, a notice is served to the
tenant that the landlady requires the
land bona fide. Once a notice under
Section 31(1) is served by such a widow
landlady, the further benefit of Section
31(3) is not available.”
63. 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 back.
64. 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.
65. There is no doubt in the case that the appellant
admittedly was a tenant of the first respondent. We
hold it is a case where there was no need for the
appellant to send any intimation within the meaning of
38
Section 32F(1A). He had acquired a deemed status with
the rejection of the application filed by the
landlord. The appellant was not obliged to do
anything further. In view of the matter, we allow the
appeals and set aside the impugned decisions passed by
the High Court and restore the order passed by the
Collector. There will be no order as to costs.
…....................J.
[ASHOK BHUSHAN]
…....................J.
[K.M. JOSEPH]
NEW DELHI;
FEBRUARY 12, 2019.
39
