WRIT PETITION 2088 of 1985 on 17 February 1967

ORAL JUDGMENT:

1. This petition deals with the tenancy rightsunder the Bombay Tenancy and Agricultural Lands Act,1948 (the Tenancy Act for short) in respect of theagricultural land located in Survey No.17 of villageShirala and admeasuring 7 acres 5 gunthas. This land was a Mirashi Inam Land and Shri Krishna BabajiSawant, the father of the present respondent no.2 wasthe original Mirashdar/Watandar. However, theMirashdar was not cultivating the land and the samewas being cultivated by two persons, namely, (i)Ismail Ahmed Mulani and (ii) Hasham Hussain Mulaniwith equal share under independent cultivation. Thepetitioner is the son of Hasham and on the demise ofIsmail Ahmed Mulani the names of his two sons i.e.Karim Ismail Mulani and Hussain Ahmed Mulani werebrought on record. In due course the wife of Karim,the present original respondent no.1 Smt. Ashrafbipurchased the share of her brother-in-law on11/11/1960 and thus the present petitioner and the LRsof Karim became the tenants with half share each inthe suit land. As on the tillers’ day i.e. 1/4/1957Gulab was cultivating half of the land as the LR ofHasham and the remaining half of the land which was inpossession of Ismail Ahmed initially was also beingcultivated by Gulab as sub-tenant. Thus, Gulab had adual relationship i.e. in respect of 50% of the landhe was a tenant qua the Mirashdar and on the balancehe was a sub-tenant qua the tenant i.e. Karim or hisLRs.

2. It appears that in respect of half of the landunder the lease of Karim which was being cultivated byHasham and subsequently by the present petitioner,proceedings under Section 32G of the Tenancy Act wereinitiated and the purchase price was fixed on4/11/1962. The respondent no.1 challenged the saidorder by filing Tenancy Appeal which was allowed on10/6/1963 and the 32G proceedings were remanded forretrial by the ALT, Shirala. In the fresh inquiry,the ALT framed following issues:- husband of Landlady whose whereabouts were notknown for the last 10-12 years is presumed tobe dead?

(b) If so, whether the landlady is a widow onor before 1/4/1957? and

(c) Whether she is entitled to get the benefitof Section 32F(1)(a) of the Tenancy Act?

(d) Whether Shri Gulab Hasham Mulla, thealleged tenant is lawfully cultivating theland of the landlady as a tenant?

(e) If so, whether he is entitled to purchasethe suit land under Section 32G of the TenancyAct?

.After hearing both the parties and byconsidering the evidence placed on record, the ALTanswered the first three issues in the affirmative andthe last two issues framed in respect of thepetitioner’s rights were answered in the negative videthe Judgment and Order dated 31/3/1965. This orderwas challenged in Tenancy Appeal No.113 of 1965 andthe District Deputy Collector, Walwa Division, Sangliallowed the said appeal vide his Judgment and Orderdated 17/2/1967. He set aside the ALT’s order anddirected the case for de novo inquiry in the light ofthe observations made by him in the said order.Ashrafbi, therefore, challenged the appellate orderdated 17/2/1967 before the Maharashtra RevenueTribunal in Revision Application No.153 of 1967 andthe revision was allowed by modifying the order passed

by the District Deputy Collector. The RevenueTribunal remanded the inquiry in respect of half ofthe land held by the petitioner directly from theMirashdar to fix the purchase price and in respect ofthe remaining half of the land claimed by thepetitioner through Ashrafbi, the proceedings weredirected to be dropped. This order of the RevenueTribunal is the subject matter of challenge in thispetition and the same challenge is required to beconsidered under the supervisory powers under Article227 of the Constitution.

3. Though R & P was not called in this case, the7 x 12 extracts right from the year 1948-49 and thedetails of the mutation entries effected right from1941 onwards in respect of the subject land are placedon record. The Revenue Tribunal held that Ashrafbibeing a widow, the tillers’ day would be shifted andthe cultivator could not exercise his right topurchase the half share on which he was a sub-tenantin view of the provisions of Section 32F(1) of theTenancy Act. As per the Revenue Tribunal thepetitioner’s right to purchase the land would bepostponed in view of the provisions of Section 32F of the Tenancy Act and, therefore, the inquiry wasdirected to be dropped.

4. The learned counsel for the petitioner byreferring to the record submitted that Ashrafbi couldnot be treated to be a landlady and her status at themost was as a tenant within the meaning of Section2(18) of the Tenancy Act in respect of half of thesuit land and on the said land the petitioner was asub-tenant cultivated all along and even as on1/4/1957. Her disability as a widow could notpostpone the right of the petitioner to purchase theland cultivated by him as a sub-tenant. He,therefore, refers to the order passed by the DistrictDeputy Collector on 17/2/1967 while allowing TenancyAppeal No.113 of 1965 wherein it was held that theWatandar being a superior holder the Mirashi/tenantcould not be said to be the landlord. It was alsopointed out that the presumption drawn by the RevenueTribunal regarding the demise of Karim, the husband ofAshrafbi, does not have legal support more so becauseshe only alleged that her husband was missing for last7-8 years as is noted in the order dated 17/2/1967passed by the District Deputy Collector, Walwa Division in Sangli District. Such a statement was notsufficient to draw a presumption that Karim would bedeemed to be dead as he was missing for 7-8 years.Thus, the petitioner also challenges the status ofAshrafbi as a widow at the relevant point of time. Weneed not go into the second controversy and thepetitioner succeeds on the first ground itself.

5. As noted earlier, the petitioner’s right onthe subject land is in dual capacity, namely, on halfof the land he is a tenant-Mirashi directly throughthe Watandar and on the remaining half of the land heis claiming sub-tenancy through the original tenantKarim. He, therefore, claimed his right to purchasethe entire land under two different provisions. Sofar as the land he cultivated as a tenant, he soughtto exercise his right to purchase the land underSection 32G whereas in respect of remaining half ofthe land which was under his cultivation as asub-tenant he claimed his right to purchase underSection 32I of the Tenancy Act. The record clearlyshows that the petitioner’s father Hasham was thetenant on half of the land along with Ismail Ahmedthrough the original Watandar and it is not in dispute

that as on the tillers’ day i.e. 1/4/1957 the entireland was being cultivated by him. His right underSection 32G of the Tenancy Act to purchase half of theland under his cultivation as a tenant through thesuperior holder could not be challenged by Ashrafbiand the Revenue Tribunal has rightly upheld this issueand, therefore, directed the Lower Court to determinethe purchase price. The issue in this petition thatrequires consideration is regarding the remaining halfshare which was under the direct cultivation of Karimas a tenant and subsequently with the petitioner as asub-tenant.

.Section 2(18) defines the term "tenant", whichmeans a person who holds land on lease and include,-(a) a person who is deemed to be a tenant undersection 4; (b) a person who is a protected tenant;and (c) a person who is a permanent tenant; and theword "landlord" shall be construed accordingly.

6. Section 32I of the tenancy act deals with theright of the sub-tenant of permanent tenant topurchase the land under his cultivation. The saidsection reads as under:-

32I. Sub-tenant of permanent tenant to be deemed to have purchase land. - (1) Where apermanent tenant has sub-let the land held byhim the sub-tenant shall, to the extent andsubject to the conditions specified in section32 to 32E (both inclusive), be deemed to havepurchase the land on the Tillers’ day.

(2) The purchase price thereof shall bedetermined in the manner provided in clause(ii) of sub-section (1) of section 32H.

(3) Out of the purchase price payable by suchsub-tenant the amount equal to six times therent shall, in lump sum, be payable to theowner and the balance shall be paid to thepermanent tenant.

(4) The provisions of section 32 to 32H (bothinclusive) and section 32J to 32R (bothinclusive) in so far as they may beapplicable, shall apply to the purchase of theland by such sub-tenant and the payment to be made, to and on behalf of the permanenttenant.

.Sub-section (1) clearly gives the sub-tenantthe right to be recognized as a statutory purchaser ofthe land on the tillers’ day. As per sub-section (2)the purchase price thereof shall be determined in themanner provided in clause (ii) of sub-section (1) ofsection 32H and as per sub-section (3) out of thepurchase price payable by such sub-tenant, the amountequal to six times the rent shall, in lump sum, bepayable to the owner and the balance shall be paid tothe permanent tenant. Thus, there is a distinctionbetween the status of the owner/landlord on one handand the permanent tenant on the other hand. The lawdoes not envisage that a tenant became a landlordthough the term "tenant" includes a sub-tenant.

7. The Tribunal fell in manifest error in takingsupport of the provisions of Section 32F(1)(a) of theTenancy Act, which reads as under:- 32F. Right of tenant to purchase wherelandlord is minor, etc.- (1) Notwithstanding anything contained in the precedingsections,-- (a) where the landlord is minor, or a widow,or a person subject to any mental or physicaldisability the tenant shall have the right topurchase such land under Section 32 within oneyear from the expiry of the period duringwhich such landlord is entitled to terminatethe tenancy under section 31 and for enablingthe tenant to exercise the right of purchase,the landlord shall send an intimation to thetenant of the fact that he has attainedmajority, before the expiry of the periodduring which such landlord is entitled toterminate the tenancy under section 31.

. Provided that where a person of suchcategory is a member of a joint family, theprovisions of this sub-section shall not applyif at least one member of the joint family isoutside the categories mentioned in thissub-section unless before the 31st day ofMarch, 1958 the share of such person in the

joint family has been separated by metes andbounds and the Mamlatdar on inquiry issatisfied that the share of such person in theland is separated, having regard to the area,assessment, classification and value of theland, in the same proportion as the share ofthat person in the entire joint familyproperty and not in a larger proportion.

.This provision is applicable to the landlordor the landlady and not to a tenant in as much as atenant in whatever form cannot walk in the shoes ofthe landlord. There is another aspect which theRevenue Tribunal failed to consider that on enactmentof the Bombay Paragana and Kulkarni Watans (Abolition)Act, 1950 the Inam in respect of the suit land wasabolished and the suit land was resumed by theGovernment. Mutation Entry No.3564 effected on30/7/1952 clearly states that under the orders of theCollector, Sangli the suit land was resumed by theState Government by exercising the powers underSection 3(3) of the Bombay Paragana and KulkarniWatans (Abolition) Act, 1950. The said land wasre-granted to the original Watandar sometimes in 1955

and thus, the right to purchase the land accrued tothe tiller i.e. the present petitioner and,therefore, the petitioner’s father rightly institutedthe proceedings under Section 32G of the Tenancy Act.It cannot be accepted that Ashrafbi would be alandlady within the meaning of Section 32F(1)(a) ofthe Tenancy Act and, therefore, the petitioner’s rightto purchase her share would be postponed. TheDistrict Deputy Collector was right in hisobservations that Ashrafbi could not be called as thelandlady and, in fact, through her husband shecontinued to be the tenant with the petitioner as hersub-tenant. There is no reason to close theproceedings in respect of Ashrafbi’s share of 50% ofthe suit land to decide the petitioner’s right topurchase it. The Revenue Tribunal fell in grosserrors in closing the inquiry to this extent and thusdefeated the provisions of Section 32I of the TenancyAct.

8. The learned counsel for the respondent-tenantsubmitted that the impugned order was passed by theMaharashtra Revenue Tribunal on 30/8/1968 and this petition came to be filed on 15/3/1985 and, therefore,it was hit by inordinate delays and that was asufficient ground to dismiss the petition. The Faradshows that the petition was admitted on 26/7/1985 andthe issue of limitation or delay in approaching thiscourt was not left open. Even otherwise, the impugnedorder dated 30/8/1968 was not acted upon till thepetition is filed, in as much as thepetitioner-subtenant continued to be in possession andcultivation of the half share held by Karim as thetenant of the original Watandar. We must also notethat the Tenancy Act is an agrarian reforms law and itwas enacted to protect the interest of the tillers andto bestow upon him the statutory ownership rights inrespect of the agricultural land he was cultivating onthe tillers’ day i.e. 1/4/1957. Obviously, these arethe reasons which appeared to have weighed with thiscourt while admitting the petition and not leaving theissue of delay open for arguments. Equally importantis the fact that at no point of time an affidavit inreply has been filed opposing the petition on theground of delay during last about more than 21 years.Hence the contentions of the learned counsel for therespondent-tenant on the point of delay are hereby rejected.

rejected.

9. In the premises, this petition succeeds andsame is hereby allowed by quashing and setting asidethe impugned order passed by the Maharashtra RevenueTribunal. It is directed that the purchase price inrespect of half of the suit land which was held by thepetitioner as a direct tenant shall be decided, if notalready done, within a period of three months fromtoday and certificate under Section 32M of the saidAct shall be issued in favour of the petitionerthereafter without any delay. The petitioner’sproceedings under Section 32I of the Tenancy Act inrespect of the land on which he was a sub-tenant inhalf of the share under the tenancy of Karim will beconducted de novo by the ALT and the said inquiryshall be completed as per law and as expeditiously aspossible and in any case within a period of threemonths from 1/7/2006. The application of thepetitioner in that regard shall be governed by theprovisions of Section 32I and not 32F(1)(a) of theTenancy Act.

10. Rule is made absolute in terms of the abovedirections but without any order as to costs.

(B.H. Marlapalle,J.)