BAYAJI SAMBHU MALI @ BORATE(D) THROUGH LRS. versus NAZIR MOHAMMED BALAL ZARI THROUGH GPA HOLDER & ORS. on 12 February 2019

ABAYAJI SAMBHU MALI @

BORATE(D) THROUGH LRS.

v.

NAZIR MOHAMMED BALAL ZARITHROUGH GPA HOLDER & ORS.

B

(Civil Appeal Nos. 1644-1645 of 2019)

FEBRUARY 12, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948:C

s. 29 r/w s. 32 and s. 32 F – Whether the tenant is a deemedpurchaser u/s. 29 r/w s. 32 or is covered u/s. 32F – Landlord sincewas a minor on tillers day, on attaining majority filed applicationu/s. 31(3) for personal cultivation – Application dismissed –Thereafter, tenant initiated proceedings u/s. 32G – Dismissed byDoriginal authority on the ground of non-compliance of the provisionsu/s. 32F(1A) – Appellate authority reversed the finding of originalauthority – Tribunal confirmed the order of original authority –Writ petition by the tenant was dismissed by High Court – Reviewpetition against the order was also dismissed – On appeal, held:On rejection of the application of the landlord u/s. 31, the tenantEattained status of a deemed purchaser – On having acquired suchstatus, there was no need for compliance of provisions u/s. 32F(1A).

Allowing the appeals, the Court

HELD: 1. A perusal of the First Proviso to Section 32(1) ofFBombay Tenancy and Agricultural Lands Act, 1948 read withSection 29 would show that when an application is filed by thelandlord for possession and that application is rejected then thetenant is deemed to have purchased the land. Section 32F, onthe other hand, entitles the tenant to purchase. This is applicablein a situation where the landlord is a minor and on attainingGmajority though he has a period of one year from the date onwhich he attains majority to terminate the tenancy and he doesnot do so. Then the time starts ticking for the tenant from theexpiry of the period of one year from which the minor landlordbecomes major. [Para 52][986-A-C]

H

2. If there is no deemed tenancy within the meaning ofSection 32 proviso read with Section 29 then the only alternativeavailable for the tenant is to purchase the right by invokingprovision of Section 32F. Both cannot exist together viz. if aperson has a deemed status, there is no need for him to apply forpurchase under Section 32F. Section 29 read with Sections 32and 32F deal with two mutually exclusive situations. In a casecovered by Section 29 read with Section 32(1) the tenant acquiresthe deemed status and in a case where a matter is covered bySection 32F, there is no deemed status for the tenant but he hasto invoke provision of Section 32F and issue a notice both tothe landlord and to the Tribunal within the meaning ofSection 32F(1A) and the matter has to be decided by the Authority.[Para 53][986-D, E]

3. In the facts of the present case, if it is established thatprovisions contained in Section 32 read with Section 29 areapplicable in so far as if the court accepts the case of the appellantthat the respondent landlord had invoked Section 29 read withSection 32, being a case of a minor who became entitled to applywithin a period of one year from the date of attaining majority andthe application culminated in the rejection of his case, then theappellant would acquire deemed status. If he acquires deemedstatus, then there could be no need to invoke Section 32F. Ratherthere is no need for him to again acquire a status which is conferredupon him by law by a deeming provision. Nothing more is requiredto be done by the tenant in such a case. [Para 54][986-F, G]

4. The appellant has produced material, the orders passedby the Appellate Authority and also by the Tribunal in Revision.It does show by invoking Sections 29 and 32, the first respondenthad applied by projecting the case that he was born in 1948. Theapplication filed by him stood rejected on the basis that theapplication was barred as birth register showed that he was bornin 1947. Though the appellant has not produced certified copiesearlier and has produced the same in the High Court along withthe review petition, after the judgment was delivered in the writpetition. [Para 55][986-H; 987-A-B]

5. Thus, the appellant admittedly was a tenant of the firstrespondent. It is a case where there was no need for the appellant ABC

DE

F

G

H

Ato send any intimation within the meaning of Section 32F(1A).He had acquired a deemed status with the rejection of theapplication filed by the landlord. The appellant was not obligedto do anything further. [Para 65][990-B-C]

6. There is a wealth of documents showing that theBrespondent litigated the matter at three levels i.e. the applicationfiled by the landlord dated 20.05.1967, the order passed in appealand still further the order in revision before the Tribunal. Relyingon some discrepancy as regards the date of filing of theappeal and the date of the impugned order, the Authoritiesand the High Court should not have found against the appellant.C[Para 64][989-H; 990-A]

Amrit Bhikaji Kale and Ors. v. Kashinath JanardhanTrade and Anr. (1983) 3 SCC 437 : [1983] 3 SCR237 ; Anna Bhau Magdum, Since Deceased by LRs v.Babasaheb Anandrao Desai (1995) 5 SCC 243 : [1995]D2 Suppl. SCR 259 ; Sudam Ganpat Kutwal v.Shevantabai Tukaram Gulumkar (2006) 7 SCC200 :[2006] 4 Suppl. SCR 682 ; Tukaram Maruti Chavan v.Maruti Narayan Chavan (Dead) by LRs and Others(2008) 9 SCC 358 : [2008] 13 SCR 508 – relied on.

E

From the Judgment and Order dated 05/08.08.2011 of the HighCourt of Judicature at Bombay in Writ Petition No. 6355 of 1997 andGOrder dated 23.12.2011 in Review Petition No. 131 of 2011 in WritPetition No. 6355 of 1997.

Sudhanshu S. Choudhari, Yogesh Kolte, Ms. Surabhi Guleria,Ms. Nandani Singla, Ms. Puspa Devi Sikri, Advs. for the Appellants.

HAaditya Vijaykumar, Ms. Shomila Bakshi, Ms. Raadhika Khanna,Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J. 1. Leave granted.

2. By the impugned judgment and order, the High Court hasdismissed the writ petition filed by the appellant under Article 227 of theConstitution against the order dated 09.01.1997 of the MaharashtraRevenue Tribunal and the review petition filed against the same.

3. These appeals arise under the Bombay Tenancy and AgriculturalLands Act, 1948 (hereinafter referred to as ‘the Act’). The appellant isthe tenant and the respondent is the landlord. On what is described asTillers 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 deemedpurchaser within the meaning of Section 29 read with Section 32 of theAct or whether this is a case under Section 32F of the Act underwhich the tenant is obliged to give a notice under Section 32F(1A).

4. To appreciate the question which arises before us, it is necessarywe should first set out the facts according to the appellant which arerelated to the impugned order.

5. It is the case of the appellant that the first respondent – landlordclaimed that he had attained majority on 10.09.1966 and filed anapplication bearing Tenancy Case No. 1 of 1967 before the Mamalatdarfor his personal cultivation under Section 31(3) of the Act. The appellantclaimed that he had received a notice issued by Tenancy Awwal Karkunand was directed to appear on 05.06.1967. His statement was recorded.By order dated 27.07.1967, the application filed by the landlord seekingpossession 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 theAppellate Authority. The said appeal came to be dismissed on 09.03.1968.The respondent – landlord carried the matter further before the Tribunalby way of a Revision Application. The Maharashtra Revenue Tribunalvide order dated 22.04.1970 dismissed the Revision Application. It isthereafter the tenant-initiated proceedings under Section 32G of the Actin the year 1977. The Original Authority, however, took the view thatthe tenant did not comply with the provision of Section 32F of the Actwhich was challenged before the Sub-Divisional Officer who confirmedthe order vide order dated 30.09.1978.

A

B

C

DE

F

G

H

A

7. The Tribunal, on a Revision filed by the appellant, set aside theorder and remanded the matter for a fresh inquiry under Section 32G ofthe Act.

8. By order dated 20.07.1990, the Additional Tehsildar, afternoticing certain discrepancies in the extract of Appeal Register relatingBto the proceeding commenced by the landlord found that the appellanthad failed to prove that the landlord had exercised his right to recoverpossession under Section 31 of the Act and therefore the provision ofSection 32F of the Act applies. Since the same had not been compliedwith, therefore the purchase in favour of the appellant was found to beineffective.C

9. The Appellate Authority, by order dated 24.04.1992, however,found otherwise and allowed the appeal filed by the appellant. Thelandlord challenged the order of the Appellate Authority. By order dated09.01.1997, the Tribunal set aside the order of the Appellate Authorityand confirmed the order passed by the Additional Tahsildar and foundDthat 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 writpetition. The High Court dismissed the writ petition and though theappellant filed a review petition, the same was also rejected.

10. We have heard learned counsel for the parties.E

11. Learned counsel for the appellant contended that this is acase where the matter should be treated as governed by the provisionsunder Section 29 read with Section 31 of the Act. In a case governed bythese provisions, learned counsel pointed out that there is no requirementof issuing notice within the meaning of Section 32F. He relied onFTukaram Maruti Chavan v. Maruti Narayan Chavan (D) by Lrs.and Ors.(2008) 9 SCC 358 and Sudam Ganpat Kutwal v. ShevantabaiTukaram Gulumkar(2006) 7 SCC 200.

12. It is clear that the landlord had filed an application under Section29 of the Act and the said application was rejected and the rejection wasGupheld right upto the Tribunal in Revision.

13. These documents have been brushed aside as also the legaleffect of the orders passed. He would further contend that though hehad produced certified copies along with review petition in the HighCourt even then the same were not considered. He would maintain that H

in a case where there is a deemed purchase, there is no requirement toissue a notice under Section 32F(1A).

14. Per contra, learned counsel for the respondent would supportthe order of the High Court. He would contend that it is mandatory togive a notice under Section 32F(1A). Without giving such a notice, it isnot open to contend that he must be deemed to have purchased theright. He would also point out that the case of the respondent is that theapplication was not accepted since the certified copies were producedonly after the dismissal of the writ petition that too in the review.Therefore, no store can be laid by the said documents. He also contendsthat it was appellant’s case that there was substantial compliance ofSection 32F(1A) in the High Court.

15. Time is now apposite to make a survey of statutory scheme ofthe Act. The Act was enacted in the year 1948. We must advert to thefollowing provisions which we think are relevant for the purposes of thiscase.

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 topossession of any land or dwelling house under any of theprovisions of this Act may apply in writing for such possession tothe Mamlatdar. The application shall be made in such form asmay be prescribed [and within a period of two years from thedate on which the right to obtain possession of the land or dwellinghouse is deemed to have accrued to the tenant, agricultural laboureror artisan, as the case may be].

(2) [Save as otherwise provided in sub-section (3A), no landlord]shall obtain possession of any land or dwelling house held by atenant except under an order of the Mamlatdar. For obtainingsuch order he shall make an application in the prescribed form[and within a period of two years from the date on which the rightto obtain possession of the land or dwelling house, as the casemay be, is deemed to have accrued to him].

(3) On receipt of application under sub-section (1) or (2) theMamlatdar shall, after holding an inquiry, pass such order thereonas he deems fit : [Provided that where an application under sub-section (2) is made by a landlord in pursuance of the right conferred ABC

D

E

F

G

H

Aon him under section 31, the Mamlatdar shall first decide, aspreliminary issues, whether the conditions specified in clauses (c)and (d) of section 31A and sub-sections (2) and (3) of section31B are satisfied. If the Mamlatdar finds that any of the saidconditions is not satisfied, he shall reject the application forthwith].B17. Section 31 deals with Landlord’s right to terminate tenancyfor personal cultivation and non agricultural purpose which reads asfollows:

31. (1) Notwithstanding anything contained in sections 14 and 30but subject to sections 31A to 31D (both inclusive), a 3 [landlordC(not being a landlord within the meaning of Chapter III-AA) may],after giving notice and making an application for possession asprovided in sub-section (2), terminate the tenancy of any land(except a permanent tenancy), if the landlord bona-fide requiresthe land for any of the following purposes :–– (a) for cultivatingpersonally, orD(b) for any non-agricultural purpose.

(2) The notice required to be given under sub-section (1) shall bein writing, shall state the purpose for which the landlord requiresthe land and shall be served on the tenant on or before the 31[st]Eday of December 1956. A copy of such notice shall, at the sametime, be sent to the Mamlatdar. An application for possession undersection 29 shall be made to the Mamlatdar on or before the 31stday of March 1957.

(3) Where a landlord is a minor, or a widow, or a person subject tomental or physical disability then such notice may be given [andF––an application for possession under section 29 may be made,]

(i) by the minor within one year from the date on which he attainsmajority;

(ii) by the successor-in-title of a widow within one year from theGdate on which her interest in the land ceases to exist;(iii) within one year from the date on which mental or physicaldisability ceases to exist; [Provided that where a person of such category is a member of ajoint family, the provisions of this sub-section shall not apply if atH

BAYAJI SAMBHU MALI @ BORATE(D) v. NAZIR MOHD.BALAL ZARI THR.GPA HOLDER [K. M. JOSEPH, J.]

least one member of the joint family is outside the categoriesmentioned in the sub-section unless before the 31st day of March1958 the share of such person in the joint family has been separatedby metes and bounds and the Mamlatdar on inquiry, is satisfiedthat the share of such person in the land is separated having regardto the area, assessment, classification and value of the land, in thesame proportion as the share of that person in the entire jointfamily property, and not in a large proportion].

18. 31A. The right of a landlord to terminate a tenancy forcultivating the land personally under section 31 shall be subject to thefollowing conditions:–

———

(c) The income by the cultivation of the land of which he is entitledto take possession is the principal source of income for hismaintenance.

(d) The land leased stands in the record of rights or in any publicrecord or similar revenue record on the 1st day of January 1952and thereafter during the period between the said date and theappointed day in the name of the landlord himself, or of any of hisancestors 2 [but not of any person from whom title is derived,whether by assignment or Court sale or otherwise], or if the landlordis a member of a joint family, in the name of a member of suchfamily].

19. Section 32 deals with Tenants deemed to have purchasedland 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 provisionsof this section and the provisions of] the next succeeding section,be deemed to have purchased from his landlord, free of allencumbrances subsisting thereon on the said day, the land held byhim as tenant, if–

(a) such tenant is a permanent tenant thereof and cultivates landpersonally; (b) such tenant is not a permanent tenant but cultivates the landleased personally; and AB

C

DE

F

G

H

A(i) the landlord has not given notice of termination of his tenancyunder section 31; or

(ii) notice has been given under section 31, but the landlord hasnot applied to the Mamlatdar on or before the 31st day of March1957 under section 29 for obtaining possession of the land; [or]

B[(iii) the landlord has not terminated his tenancy on any of thegrounds specified in section 14, or has so terminated the tenancybut has not applied to the Mamlatdar on or before the 31[st] day ofMarch 1957 under section 29 for obtaining possession of the lands]:

Provided that if an application made by the landlord under sectionC29 for obtaining possession of the land has been rejected by theMamlatdar 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 dateon which the final order of rejection is passed. The date on whichDthe final order of rejection is passed is hereinafter referred to as“the postponed date” : [Provided further that the tenant of alandlord who is entitled to the benefit of the proviso to sub-section(3) of section 31 shall be deemed to have purchased the land onthe 1st day of April 1958, if no separation of his share has beeneffected before the date mentioned in that proviso].E20. Section 32A provides that Tenants are deemed to havepurchased upto ceiling area.

32A. A tenant shall be deemed to have purchased land undersection 32,- (1) in the case of a tenant who does not hold any landas owner but holds land as tenant in excess of the ceiling area,Fupto the ceiling area;

(2) in the case of a tenant who holds land as owner below theceiling area, such part of the land only as will raise his holding tothe extent of the ceiling area.

G21. Section 32B provides for the circumstances in which the tenantsare not deemed to have purchased lands. It provides that if the tenantholds land partly as owner and partly as tenant but the area of the landheld as owner is equal to or exceeds ceiling area, he shall not be deemedto have purchased the land held by him as a tenant under Section 32.

H

22. Section 32C permits the tenants entitled to choose lands to bepurchased. Section 32D contemplates when tenants are deemed tohave purchased fragments. The balance of any land, if any, after thepurchase by the tenant under Section 32 shall be disposed of in themanner laid down in Section 15 as if it were land surrendered by thetenant. This is the mandate of Section 32E.

23. Section 32F deals with Right of tenant to purchase wherelandlord is minor etc. which reads as follows:

32F. (1) Notwithstanding anything contained in the precedingsections,–

(a) where the landlord is a minor, or a widow, or a person subjectto any mental or physical disability, the tenant shall have the rightto purchase such land under section 32 within one year from theexpiry of the period during which such landlord is entitled toterminate the tenancy under section 31 [and for enabling the tenantto exercise the right of purchase, the landlord shall send anintimation to the tenant of the fact that he has attained majority,before the expiry of the period during which such landlord is entitledto terminate the tenancy under section 31] :

[Provided that where a person of such category is a member of ajoint family, the provisions of this sub-section shall not apply if atleast one member of the joint family is outside the categoriesmentioned in this sub-section unless before the 31st day of March1958 the share of such person in the joint family has been separatedby metes and bounds and the Mamlatdar on inquiry is satisfiedthat the share of such person in the land is separated, havingregard to the area, assessment, classification and value of theland, in the same proportion as the share of that person in theentire joint family property and not in a larger proportion].

(b) where the tenant is a minor, or a widow, or a person subject toany mental or physical disability or a serving member of the armedforces, then subject to the provisions of clause (a), the right topurchase land under section 32 may be exercised–

(i) by the minor within one year from the date on which he attainsmajority;

(ii) by the successor-in-title of the widow within one year fromthe date on which her interest in the land ceases to exist; A

B

CDE

F

G

H

A(iii) within one year from the date on which the mental or physicaldisability of the tenant ceases to exist;

(iv) within one year from the date on which the tenant ceases tobe a serving member of the armed forces :

[Provided that where a person of such category is a member of aBjoint family, the provisions of this sub-section shall not apply if atleast one member of the joint family is outside the categoriesmentioned in this sub-section unless before the 31st day of March1958 the share of such person in the joint family has been separatedby metes and bounds and the Mamlatdar on inquiry is satisfiedCthat the share of such person in the land is separated, havingregard to the area, assessment, classification and value of theland, in the same proportion as the share of that person in theentire joint family property, and not in a larger proportion].

[(1A) A tenant desirous of exercising the right conferred on himDunder sub-section (1) shall give an intimation in that behalf to thelandlord and the Tribunal in the prescribed manner within the periodspecified in that sub-section] :

[Provided that, if a tenant holding land from a landlord (who wasa minor and has attained majority before the commencement ofEthe Tenancy and Agricultural Lands Laws (Amendment) Act,1969) has not given intimation as required by this sub-section butbeing in possession of the land on such commencement is desirousof exercising the right conferred upon him under sub-section (1),he may give such intimation within a period of two years from thecommencement of that Act].

F

(2) The provisions of sections 32 to 32E (both inclusive) andsections 32G to 32R (both inclusive) shall, so far as may beapplicable, apply to such purchase.

24. Section 32G reads as follows:-

G32G. (1) As soon as may be after the tillers’ day the Tribunal shallpublish or cause to be published a public notice in the prescribedform in each village within its jurisdiction calling upon –

(a) all tenants who under section 32 are deemed to have purchasedthe lands, H(b) all landlords of such lands, and

(c) all other persons interested therein, to appear before it on thedate specified in the notice. The Tribunal shall issue a noticeindividually to each such tenant, landlord and also, as far aspracticable, other persons calling upon each of them to appearbefore it on the date specified in the public notice.

(2) The Tribunal shall record in the prescribed manner thestatement of the tenant whether he is or is not willing to purchasethe land held by him as tenant.

(3) Where any tenant fails to appear or makes a statement thathe is not willing to purchase the land, the Tribunal shall by anorder in writing declare that such tenant is not willing to purchasethe land and that the purchase is ineffective :

Provided that if such order is passed in default of the appearanceof any party, the Tribunal shall communicate such order to theparties and any party on whose default the order was passed maywithin 60 days from the date on which the order was communicatedto him apply for the review of the same.

(4) If a tenant is willing to purchase, the Tribunal shall, after givingan opportunity to the tenant and landlord and all other personsinterested in such land to be heard and after holding an inquiry,determine the purchase price of such land in accordance with theprovisions of section 32H and of sub-section (3) of section 63A :

[Provided that where the purchase price in accordance with theprovisions of section 32H is mutually agreed upon by the landlordand the tenant, the Tribunal after satisfying itself in such manneras may be prescribed that the tenant’s consent to the agreementis voluntary may make an order determining the purchase priceand providing for its payment in accordance with such agreement].

(5) In the case of a tenant who is deemed to have purchased theland on the postponed date the Tribunal shall, as soon as may be,after such date determine the price of the land.

(6) If any land which, by or under the provisions of any of theLand Tenures Abolition Acts referred to in Schedule III to thisAct, is regranted to the holder thereof on condition that it was nottransferable, such condition shall not be deemed to affect the rightof any person holding such land on lease created before the regrant A

BCDE

F

G

H

Aand such person shall as a tenant be deemed to have purchasedthe land under this section, as if the condition that it was nottransferable 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 forBthe appellant and learned counsel for the respondents and also thestatutory scheme, we must delve a little deeper into the facts and alsoapply the same in the backdrop of the scheme of the Act. The HighCourt has proceeded on the basis that the appellant has not given noticeunder Section 32F(1A). According to the High Court, it is mandatory.CLearned counsel for the respondent also relies on that reasoning. Onthe 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). Thelandlord would point out that the Court may notice that it is the case ofthe appellant that Section 32F(1A) has been substantially complied withby the appellant.D

27. Section 29(2) contemplates that no landlord shall obtainpossession of any land or dwelling house held by a tenant except underan order of the Mamlatdar. He is obliged to make an application withintwo years from the date on which the right to obtain possession of theland or dwelling house, as the case may be is deemed to have accruedEon him. Subsection (3) provides that the Mamlatdar is to pass an orderafter conducting such inquiry. In the proviso, it may be noticed thatwhere an application under subsection (2) is made by a landlord inpursuance of the right conferred upon the landlord under Section 31, insuch case, the Mamlatdar is to first decide preliminary issues whichFinclude whether the conditions in clauses (c) and (d) of Section 31A aresatisfied. He must also be convinced that the conditions mentioned undersubsections (2) and (3) of Section 31B are fulfilled. He is dutybound toreject the application, if the conditions therein are not fulfilled. With therest of the provisions contained in Section 29, we may not be detained.Therefore, now coming to Section 31, Section 31 falls under Chapter IIIGtitled Special Rights and Privileges of Tenants and Provisions forDistribution 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 Cultivationand Non Agricultural Use. It will be noticed that Section 32 and other H

provisions which follow the same fall under Part (II) which deals withPurchase of Land by Tenants.

29. Reverting back to Section 31, it contemplates that subject toSections 31A to 31D both inclusive and notwithstanding whatever maybe contained in Sections 14 and 30, a landlord after giving notice andmaking an application for possession as provided in subsection (2) canterminate the tenancy of any land barring permanent tenancy, should herequire the land for cultivating personally or for any non agriculturalpurpose.

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 tobe served on or before 31[st] Day of December 1956. A copy of the saidnotice is to be sent to the Mamlatdar. It is thereafter clearly providedthat an application for possession under Section 29 is to be made to theMamlatdar on or before 31[st] day of March 1957.

31. However, subsection (3) of Section 31 contemplates that wherea landlord is a minor or a widow or a person subject to mental or physicaldisability, the notice may be given and an application for possession underSection 29 may be made by the minor within one year from the date onwhich he attains majority. We are not concerned here with the othercategories. Therefore, we can hold that if a landlord is a minor, he caninvoke provisions of Section 29 and an application for possession underSection 29 can be made within one year from the date on which heattains majority. Section 31A provides for the conditions of terminationof tenancy. It limits the right of the landlord to terminate a tenancy forcultivating the land personally under Section 31 by hedging the said rightwith certain conditions. The conditions also may not concern us. It isnow that we must pass on to Section 32.

32. Section 32 declares that on Tillers day which is the First dayof April 1957, every tenant shall be deemed to have purchased from hislandlord free of all encumbrances subsisting thereon on the said day theland held by him. There are two limitations which can be culled outfrom the said provisions. A declaration under Section 32 is made subjectto the other provisions of the said section. It is further made dependenton the operation of the next succeeding sections. In other words, theprovisions which follow Section 32 will control the application ofSection 32.

AB

C

DEF

G

H

A

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 theBombay Act 38 of 1957. If it is broken down, it provides as follows:

1. The application is made by the landlord under Section 29 forobtaining possession of the land; B

2. it has been rejected by the Mamalatdar or by the Collector inappeal or in revision by the Maharashtra Revenue Tribunal. [TheMaharashtra Revenue Tribunal has been brought in by way ofMaharashtra Act 23 of 2007 with effect from 13.12.2007];

3. if the aforesaid elements are satisfied the proviso declares thatCthe tenant shall be deemed to have purchased the land on the dateon which the final order of rejection is passed;

4. the date on which the final order of rejection is passed is to bereferred to as ‘the postponed date’.

D34. Since Section 32 has been made subject to the next succeedingsections, it will be noted that the next succeeding sections in the form ofSections 32A, 32B, 32C and 32D provide for the conditions and limitationssubject to which the deeming provision operates. In other words, thedeemed right which is conferred on a tenant under Section 32 will beenjoyed subject to the restrictions under Sections 32A to 32D.

E

35. Before we discuss Section 32F, we deem it appropriate torefer to Section 32G. Section 32G deals with the power of the Tribunalto issue notice and determine the price of the land to be paid by thetenants. Section 32G(5) declares that in the case of a tenant who isdeemed to have purchased the land on the postponed date the TribunalFshall determine the price of the land. The ‘Tribunal’ is defined in Section2(19) as the Agricultural Lands Tribunal under Section 67.

36. Section 32G inter alia provides that the Tribunal shall publishor cause to be published a public notice calling upon the persons who aredeemed to have purchased the lands. This is apart from calling upon theGlandlords 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 statementthat he is not willing to purchase the land will result in the Tribunal orderingin writing declaring that such tenant is not willing to purchase and thepurchase is ineffective. If the tenant is willing to purchase, the Tribunalafter giving an opportunity to the landlord and the tenant determine theHprice.

37. Reverting back to Section 32F, it begins with a non obstanteclause. The non obstante clause is qua anything which is stated in thepreceding sections.

38. It provides inter alia for a right of the tenant to purchasewhere the landlord is a minor tenant. In such a case, he would have theright to purchase within a period of one year under Section 32. Thisperiod of one year will begin to run from the expiry of the period duringwhich the landlord is entitled to terminate the tenancy under Section 31.

39. Section 31 provides for a period of one year from the date onwhich the minor attains majority when the landlord is a minor for him togive notice and followed by an application under Section 29.

40. Section 32F further provides that the landlord is obliged tosend an intimation to the tenant of the fact that he has attained majoritybefore the expiry of the period during which the landlord can terminatethe tenancy under Section 31.

41. We will illustrate working of the Section with a concreteexample.

If a landlord is a minor and he attains majority as on 01.01.1966then under Section 31, he will get a period of one year forterminating the tenancy. The period will run out on 31.12.1966.The landlord is obliged to intimate his tenant about the fact that hehas attained majority before 31.12.1966. Thereupon, the tenant ifhe wishes to purchase, he would have the right to give a noticewithin a period of one year from 31.12.1966. Thus, he wouldhave the period till 30.12.1967. As to how the intimation is to begiven under subsection (1) of Section 32F is provided in Section32F(1A). Section 32F(1A) provides he must give an intimationabout his exercising the right under subsection (1) both to thelandlord and the Tribunal in the manner prescribed within the periodmentioned in subsection (1) which we have explained by way ofan illustration. The proviso which was added by the Act 49 of1969 contemplates an extended period of giving the intimation bya 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 theappellant 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 A

B

C

DE

F

G

H

Aus is that what is crucial is he must be treated as a deemed tenant havingregard to the fact that the respondent – landlord unsuccessfully filed anapplication within the meaning of Section 29 read with Section 32.

43. At this juncture, we must focus on the facts given by the landlordmore closely. As we have noticed, the case of the appellant is that theBrespondent filed an application under Section 29 and the same came tobe rejected by order dated 27.07.1967. The landlord, according to theappellant, preferred an appeal which was rejected on 09.03.1968.

44. In the order dated 09.03.1968, the Appellate Authority foundglaring loopholes in the evidence of the first respondent. On the oneChand, there was an entry regarding the date of birth which was in theschool register and on the other hand there was an entry in the birthregister. One date of birth was shown as 10.09.1947 whereas the otherdate of birth was shown as 04.06.1948. The school certificate showsthat the date of birth is 04.06.1948 where as the date given in the birthregister is 10.09.1947.D

45. The application was filed by the first respondent - landlord on20.05.1967. If the date of birth is taken as 04.06.1948, which wasapparently pressed upon by the first respondent, the application dated20.05.1967 would have been within time. Whereas if the date of birth istaken as 10.09.1947, the application filed by the respondent was clearlyEtime barred. The Authority did not accept the version of the landlord.

46. From the orders which are produced before us in the revisionapplication filed by the first respondent, the Maharashtra Tribunal hasconfirmed this finding. The revision application was dismissed.

47. It is thereafter that the appellant filed an application purportingFunder Section 32G. As we have noticed the matter travelled upto theTribunal which remanded it to the Original Authority, it is thereafter thata new round of litigation commenced and which culminated in theimpugned order of the High Court. In this round, the order of the OriginalAuthority went against the appellant and it is found that the landlordGbecame a major on 04.06.1966.

48. He found that the provisions of Section 32F are applicable.The Original Authority further reasoned that it was necessary for theappellant to exercise a right of purchase by giving intimation under Rule20 of the Rules, 1956 within two years from the date of attaining majorityHi.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 handsof the first respondent – landlord, it is stated as regards extract of appealregister, there is some discrepancy in the extract. It has mentioned thatthe date of lower court order is 27.07.1967 and the date of receipt is19.06.1967 (apparently the date of receipt is the date of receipt of theappeal, in other words, the discrepancy is that the date of the appeal isearlier than the date of the order which is impugned in the appeal). It isfurther stated that there is no evidence by the first respondent to establishthat the landlord terminated the tenancy and filed an application forpossession of the suit land under Section 29 read with Section 31 afterattaining majority. Therefore, it was for the tenant to exercise his rightof purchase under Section 32F(1A) which he failed to exercise and thusresulted in the loss of his right. The Assistant Collector in the appealfiled by the appellant allowed his appeal. The Tribunal reversed theorder of the Appellate Authority and restored the order of the OriginalAuthority. The Tribunal has proceeded on the basis of the discrepancyin the appeal and the order is substantially on the lines of what the OriginalAuthority has proceeded to hold. It is further pointed out that where theparty is to produce the primary evidence it would be a certified copy andnothing else.The landlord has denied the filing of the case forpossession and the tenant / appellant has failed to comply with theprovisions of Section 32F. He has lost the right to purchase the suit land.

49. The High Court has adverted to the provisions and found therewas a serious doubt expressed about the initiation of proceedings filedby the landlord and the learned Single Judge could not see how theTehsildar and the Agricultural Land Tribunal have committed an errorapparent on the face of the record or perversity in regard to the findingabout giving intimation. It was further found that in the proceedingsunder Section 32G, it was permissible to the landlord to raise an issue ofnon compliance under Section 32F(1A) by the tenant.

50. It was reiterated that intimation to the landlord and the Tribunalunder Section 32F(1A) is a mandatory pre-requisite.

51. The argument of the appellant that the proceedings after theremand must be treated as a continuation of an earlier round of litigationand there is a substantial compliance with Section 32F(1A) was notaccepted.

Interplay between Section 29 read with first proviso to Section32(1) and Section 32F

AB

C

DE

F

G

H

A52. A perusal of the First Proviso to Section 32(1) read with Section29 would show that when an application is filed by the landlord forpossession and that application is rejected then the tenant is deemed tohave purchased the land. With reference to the date on which the orderrejecting the landlord’s application under section 29 read with Section 32is passed. This is a case of deemed purchase. Section 32F, on the otherBhand, entitles the tenant to purchase. This is applicable in a situationwhere the landlord is a minor and on attaining majority though he has aperiod of one year from the date on which he attains majority to terminatethe tenancy and he does not do so. Then the time starts ticking for thetenant from the expiry of the period of one year from which the minorClandlord becomes major.

53. If there is no deemed tenancy within the meaning of Section32 proviso read with Section 29 then the only alternative available forthe 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 isDno need for him to apply for purchase under Section 32F. Section 29read with Sections 32 and 32F deal with two mutually exclusive situations.In a case covered by Section 29 read with Section 32(1) the tenantacquires the deemed status and in a case where a matter is covered bySection 32F, there is no deemed status for the tenant but he has to invokeprovision of section 32F and issue a notice both to the landlord and to theETribunal within the meaning of Section 32F(1A) and the matter has to bedecided by the Authority.

54. In the facts of this case, if it is established that provisionscontained in Section 32 read with Section 29 are applicable in so far asif we accept the case of the appellant that the respondent landlord hadFinvoked Section 29 read with Section 32, being a case of a minor whobecame entitled to apply within a period of one year from the date ofattaining majority and the application culminated in the rejection of hiscase then the appellant would acquire deemed status. If he acquiresdeemed status, then there could be no need to invoke Section 32F. RatherGthere is no need for him to again acquire a status which is conferredupon him by law by a deeming provision. Nothing more is required to bedone by the tenant in such a case.

55. Coming to the merits of the matter, the appellant has producedmaterial, the orders passed by the Appellate Authority and also by theHTribunal in Revision. It does show by invoking Sections 29 and 32, the first respondent had applied by projecting the case that he was born in1948. The application filed by him stood rejected on the basis that theapplication was barred as birth register showed that he was born in1947. Though the appellant has not produced certified copies earlier,the appellant has produced the same in the High Court after the judgmentwas delivered in the writ petition along with the review petition.

56. A reference to case law does not advance the case of therespondents. In Amrit Bhikaji Kale and Ors. v. Kashinath JanardhanTrade and Anr.(1983) 3 SCC 437 which related to the proceedingsunder the Same Act, this Court held as follows:

“On the tillers’ day the landlord’s interest in the land getsextinguished and simultaneously by a statutory sale withoutanything more by the parties, the extinguished title of the landlordis kindled or created in the tenant. That very moment landlord-tenant relationship as understood in common law of Transfer ofProperty Act comes to an end. The link and chain is broken. Theabsent non-cultivating landlord ceases to have that ownershipelement of the land and the cultivating tenant, the tiller of the soilbecomes the owner thereof.

Section 32F has an overriding effect over Section 32 as it openswith a non obstante clause. The combined effect of Sections 32Fand 32 is that where the landlord is under no disability as envisagedby Section 32F the tenant of such landlord by operation of lawwould become the deemed purchaser by where the landlord is ofa class or category as set out in Section 32F, the date of compulsorysale would be postponed as therein provided. Since ‘T’, the landlordwas 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’ cameto be extinguished and no right could be claimed either by ‘T’ oranyone claiming through him such as ‘A’ or the present purchaserson the footing that they are the owners of the land on or afterApril 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. Therecannot be any automatic purchase under Section 32 read with Section32G in such a case. However, it is relevant to note para 15.

AB

CD

E

F

G

H

A“15. The submission of Shri Wad is that if express statement madeby the tenant could not stand in the way of his availing the rightconferred by the Act, there is no reason why merely because ofinaction on his part a tenant should be deprived of the right. Theobservations aforementioned made in Amrit Bhikaji Kale have tobe read in the context of the facts of that case where it was foundBthat the landlord who was major and was under no disability, wasalive on 1-4-1957 and the provisions of Section 32F were notattracted and there was deemed purchase of the land by the tenantby virtue of Section 32. The subsequent statement made by thetenant in proceedings before the Aval Karkoon were, therefore,Cheld to be of no avail. The position in the instant case is, however,different. The respondent – landlord was a minor on 1-4-1957and the case was governed by Section 32F and there has beennon compliance of sub-section (1A) of Section 32-F.”

58. It is also relevant to note that it was not a case where theDquestion related to ‘postponed date’ within the meaning of the first provisoto Section 32(1), but the principle relating to deemed status under Section32(1) will apply in respect to deemed status under the proviso.

59. In Sudam Ganpat Kutwal v. Shevantabai TukaramGulumkar(2006) 7 SCC 200, the landlord filed an application underESection 31 read with Section 29 of the Act. The claim was acceptedand possession of half of the land was directed to be delivered for abona fide cultivation. The other half was to remain with the tenant.Thereafter, the landlady filed an application seeking possession of theremaining half of the land alleging certain defaults by the tenant.

FLater, the successor-in-interest of the landlady filed an applicationunder Section 32(P) read with Section 32F for declaration that the deemedstatutory purchase by the tenant was void as there was no requirednotice under Section 32F(1A) of the Act. This Court referred to theprovisions and culled out its conclusions in para 23, which read, interalia, as follows:G

“23. The position as disclosed by a combined and harmoniousreading of Sections 31, 32, 32F and 32G may be stated thus :

a) Where the landlord has not served on the tenant, a notice oftermination (as stated in clause (b) of sub-section (1) of section32), the tenant is deemed to have purchased the land on the tillersHday (1.4.1957);

b) Where the tenant is deemed to have purchased the land on theTillers Day (1.4.1957), the Lands Tribunal is required to issuenotice and determine the price of land to be paid by tenant. Wherethere is a deemed purchase, but the right to purchase is postponed,the Land Tribunal shall determine the price of land, as soon asmay be after the postponed date; ————

f) Where a landlord, who is a widow, exercises her right oftermination and secures possession of part of the tenanted landfor personal cultivation under section 31(1) of the Act, then thereis no question of her successor-in-title giving a notice of terminationwithin one year from the date on which the widow’s interest ceasesto exist. When section 31 (3) ceases to apply, section 32F alsowill not apply and there is no need for the tenant to give anyintimation 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 whetherthe appellant could exercise right to purchase in the absence of intimationunder Section 32F(1A) to the landlord and to the Tribunal.

61. The original landlady who was a widow died in 1964 leavingbehind him two sons. The original tenant initiated proceedings underSection 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 widowlandlady has already exercised her right under Section 31(1) i.e.when during her lifetime, a notice is served to the tenant that thelandlady requires the land bona fide. Once a notice under Section31(1) is served by such a widow landlady, the further benefit ofSection 31(3) is not available.”

63. No doubt, learned counsel for the respondent submitted thatin the event the Court is inclined to take a view that the certified copiesare to be looked into, the matter may be remitted back.

64. We are of the view that there is a wealth of documents showingthat the respondent litigated the matter at three levels i.e. the applicationfiled by the landlord dated 20.05.1967, the order passed in appeal and A

B

C

DE

F

G

H

Astill further the order in revision before the Tribunal. Relying on somediscrepancy as noted as regards the date of filing of the appeal and thedate of the impugned order, the Authorities and the High Court shouldnot have found against the appellant.

65. There is no doubt in the case that the appellant admittedlyBwas a tenant of the first respondent. We hold it is a case where therewas no need for the appellant to send any intimation within the meaningof Section 32F(1A). He had acquired a deemed status with the rejectionof the application filed by the landlord. The appellant was not obliged todo anything further. In view of the matter, we allow the appeals and setaside the impugned decisions passed by the High Court and restore theCorder passed by the Collector. There will be no order as to costs.

Kalpana K. Tripathy

Appeals allowed.

D

E

F

G

H