Headnote
The reporters’ summary of the points decided. It is not part of the judgment.
ae nents
: | ot DAMODAR GANPAT WANT. & ANR. ren Ves \! eo ‘ RAJARAM DHONDU WAGH & ORS. “July 28, 1978 - ne [s. MURTAZA FAZAL ALL, JASWANT ‘SINGH AND R S. Parsi, jJ.J
: Bombay Tenancy and Agricultural Lands Act, 1948, Sections 32, 34, 3404), 371). and 88 (14)—Scope ot.
= * Pursuaat to proceeding wader s. 34 of the Bombay Tenancy and Agricoltural Lands, Act,: 1948, the first appellant, the landlord, obtained possession of agricultural land from the tenant on June 14, 1960. On April 2,'1964 be executed a registered sale deed transferring the land to the second appellant. On January 2, 1965 the first respondent, Rajaram Dhondu Wagh, 4 son of the ‘original ‘tenant, applied to the Extra Awal Karkun of Jammer under s.° 37 of the Tenancy:Act against the appellants for possession-of the land on the ground that the first appellant had sold’ the land to’ the: second appellant before the expiry of 12 years from the date he had been put into possession.. The application was allowed.’ On appeal by the appellants the Collector set aside the order of the Extra Awal Karkun and held that having regard to s. 88(1A): of the Tenancy Act Rajaram Dhondu Wagh could not be described as a tenant entitled to hold the land under s..34 of the Tenancy Act. ~ On revision application by the respondents the Maharashtra Revenue Tribunal set aside the order of the Collector and awarded possession of the land to the respondents, holding that the respondents were tenants. -The appellants sought relief under Art. 227 of the Constitution before the Bombay High Court, but the petition was summarily rejected by an order dated June 17, 1968. - - "That order was challenged in appeal by special leave.
Dismissing the appeal, the Court De *
HELD ; 1. Section 34 of the Bombay Tenancy Act confers rights. and privileges on the landlord as well.as the tenant and if a tenant fell within the mischief of Section 88(1A);. the: landiord, on making out a case under Section 34(1} was .exempt from the restrictions on his rights imposed by sub-section (2) and .(2A). of Section 34 because the rights or privileges cc conferred on the tenant by those sub-sections were nO longer’ available to him by Teason of Section’ 88 (1A). {1071 F-G] ;
~ Section 34d) - of the Tenancy Act entitles the landlord to terminate the tenancy of the protected tenant by giving him one year’s notice in'writing, if the landlord bona fide requires the land for cultivating personally. Section 34(2-A) qualifies the landlord’s right to terminate the tenancy by certain condi- _ tions, and one of the them is that if the Jand held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate tho - tenancy of the protected tenant must ts limited to an area which should, after such termination, leave with the tenant half the area of the land leased. That . condition. confers a right or privilege on the tenant to retain half the area of the land leased notwithstanding that-a case has been made out ‘by the landlord under section 34(1) for termination of the tenancy. Section 88(1A) provides that a protected tenant, whose name stands entered.as an owner in the record ~ of rights on the first day of January 1952 in respect of any land fifty acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on Iease as a protected tenant, shall not be entitled to any rights or privileges conferred on a Protected tenant by the provisions of section 32 or 34. What section 88(1A) does is to deprive the protected tenant of the rights and privileges conferred on him by section 32 or 34. It does nothing more. Consequently, the right or privilege which the tenant enjoyed under section 34(2-A), that is to say, the retention of possession of half the area of the land Jeased was lost, and in the result the landlord became entitled to possession of the entire land leased. [1071 C-F]
i
’ GANPATWANI vy. DHONDUWAGH (Pathak, J) 1069
The lardlerd ohiains bis right to terminate the tenancy of a protected tenant under Se".- + 34¢1 im o: “es Act and that is what happened in this case. The first apPrLtast Wis atic _to terminate the tenancy, because of Section ont . Hy
Janga Baoji Mali \ v. Nasarat Jahan Begum and Ors. ILR 1958 Bombay 571; approved. .
2. Section 37(1) of the Act comes into play after the stage of termination of the tenancy because of Section 34(1).°: Section 37(1) declares that “if after the landlord takes possession of the land after.the termination of the tenancy under section 34, he fails to use it for any of the purposes specified in the notice given under sub-section (1) of section 34 within one year-from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession,
‘the landlord shall forthwith restore possession of the land to the tenant . Whose tenancy was: terminated by him....... peeeeare ‘. [1072 A-BJ mee
The first appellant, in the instant case, after. having taken possession of the land on termination of the tenancy under section 34, ceased to use it for any~ ‘ of the purposes mentioned in the notice within twelve years from June 14,°1960 the date on. which he took possession. :He sold it to the second. appellant: on April 2, 1964 and transferred possession to him. . The possession of the second appellant cannot be regarded as the possession of the: first appellant, and the conclosion must be that the default mentioned in section 37(1) took place and the respondents became ‘entitled to possession of the land. . The ‘respondents are entitled to possession of the land subject, of course, to-any limitations placed by the law in regard to their holding. [1072 C-D} .-
Judgment
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 243 ot 1969.
- Appeal’ by Special Leave from the Judgment and Order: dated 17-6-68 of the Bombay High Court i in S.C.A, No, 1090 of 1968.
'S. K. Mehta for the Appellants. 0S eas
‘R. B. Datar: and Miss Parbhat Qatari for. " Respondents “1(a) to (d), 2, 4, and 6. . ;
Ex-parte against Respondents 3, 5 and 7. . Bite et ae ~ -The Judgment of the Court was. delivered by. -
_ © PATHAK, J.—This appeal by special leave is directed against the order of the High Court of Bombay dated June 17, 1968 summarily rejecting a petition under Article 227 of the Constitution.
A parcel of land, 11 acres 8 gunthas in areas, situated in village Shingayat in ‘Jamner taluka of Jalgaon district belonged originally to Damodar Ganpat.Wani.. Dhondu Namdeo Wagh was~ his . tenant, In 1954, the landlord served a notice on the tenant under ‘section 34 ‘of the Bombay Tenancy and Agricultural Lands Act of 1948 (hereinafter referred to as ‘the Tenancy Act’) calling upon him to deliver possession of the land as he required it for his personal cultivation. The tenant refused to comply.. The.- landlord then filed’ “ Tenancy Application No. 61 of 1956-before the “Tenancy Awal Karkun’ at Jamner. The Tenancy Awal Karkun allowed ‘the application and made an order terminating the tenancy and restoring the land to the landlord. The tenant appealed-to the District Deputy Collector, Chalisgaon. Division. On June 20, 1957, the District Deputy Collector made an order awarding possession of half the land to the landlord and permitting the. other half to. remain with’ the tenant. The tenant applied in revision before the Bombay Revenue Tribunal, The Tribunal passed an order dated November 8, 1957. framing an issue on the point whether the tenant was at all entitled to hold the -
1070 -. SUPREME COURT REPORTS 2°... 1978] 3 s.c-R.
‘and in dispute ‘under ‘sections 32 and: 34 of the Tenancy Act inasmuch as he personally cultivated land of his own exceeding the ceiling area of 50 acres. He remanded the case to the District Deputy Collector for decision on the merits. On remand, the District Deputy Collector held that the tenant owned more than’ 50 acres of land on January 1, 1952 and, therefore, was not entitled under section 88(1A) of the Tenancy Act to the rights and privileges conferred ‘by sections 32 and 34 of the said Act, By his order dated January 31, 1959, he directed that the Jandlord be put in possession of the “entire land. The tenant challenged the order in revision, and the revision application...was dismissed by the Tribunal on April 30, ' .1959.: A review application by the tenant was also dismissed by the Tribunal A petition under: Article 227 of the Constitution’ filed by the’ tenant in the: High. Court was summarily dismissed.
i During the pendency of the petition in the High Court the tenant, Dhondu Namdeo Wagh, died and his legal representatives, the preaent ‘respondents, where brought on the record. - Meanwhile, in execution ‘proceedings possession of the Jand was delivered to the landlord on ‘June.14, 1960. -On April 2, 1964, the landlord executed a registered sale deed transferring the ‘and to Ramdas. Bhika Pardeshi. -
- On ‘January 2, 1965, the first . respondent, ' Rajaram ‘Dhondu ‘Wagh,.a son of the original tenant, filed Tenancy Application No. 52 ‘of 1965 before the Extra Awal Karkun of Jammer under section 37 ofthe Tenancy Act against the landlord and. Ramdas Bhika Pardeshi alleging that the landlord had sold the land to Ramdas Bhika Pardeshi before the expiry of the period of twelve years from June 14, 1960, when he had been put into possession. The Extra Awal Karkun made an order dated November 30, 1965 permitting the respondents to recover possession .of the Jand from Pardeshi. The Jandlord and Pardeshi appealed to the Collector of Jalgaon, and on December 5, 1966 the Collector allowed the appeal and set aside the order of the ‘Awal Karkun. - He held that having regard to section 88(1A) of the Tenancy Act Rajaram Dhondu Wagh could not be described as tenant of the.land and was not entitled to hold it under section 34 of the, Tenancy. Act. _He allowed Pardeshi to‘remain-in possession. -
Against the order of the Collector, the. respondents. filed a: revision application-before the. Maharashtra Revenue ‘Tribunal, ‘The. Tribunal, on. January 22,-1968; set ‘aside the.’.order-: of the. Collector.’ and
~ “awarded possession of the land to the.respondents. «It found that: thé respondents were, tenants. and could hold the land ‘in that. capacity under. section “34. of the. Tenancy. Act. : The. appellants. then sought selief under “Article 227 of the. Constitution: in: thé High. Court, -but ___ the: petition, was summarily rejected by an.order dated’ June 17, 1968.
That order i is under challenge t in this appeal.
y f or “Tn its order. ‘dated January 22, 1968- ‘allowing the“ revision app cation, the. Tribunal. held that the substantive right of. the Jandlord to ‘obtain possession of the Jand.from the.tenant must be founded in section 34 of the Tenancy Act and not in section 88(1A) of the Act, and what section 88(1A) did was merely to withdraw. the privileges granted to the tenant under section 34 to obtain Possession of half the oo ie mS iN * Tre ON TNS a a a . ’ 4
— land, thus enabling the first appellant to obtain possession of the entire. ° land and that as the’ possession was taken by the first appellant for bona fide personal.cultivation, it was open to the erstwhile tenant or his sons, the respondents, to apply under section 37 read with section 39 of the Tenancy. Act for possession of the land. The Tribunal also held that section 88(1A) did not bring to an.end the status_of the ‘tenant as a protected tenant. It also rejected the submission that as the second appellant was cultivating the land.it should be taken that the cultivation. was on behalf of the first ‘appellant. .
‘We have no hesitation 3 jn- dismissing: this appeal. ” Section 34(1) of the Tenancy Act entitles the landlord to terminate the tenancy of the protected tenant: by giving him one year’s notice in. writing, if the Jandlord bona fide ‘requires the land for - cultivating personally. ,
Section-34(2-A) qualifies the landlord’s - right to . terminate ~.the tenancy ‘by.certain conditions; and one of them.is that if the ‘land held by- the -landlord is more than the agricultural holding in areas, the ‘right of the landlord to terminate.the-tenancy of.the protected tenant must be limited to an area which should, after such ‘termina, tion, leave with the tenant half the area of the land leased. The condition confers right or: privilege on the tenant to retain half: the area of the land leased notwithstanding that a case has been made out by the landlord under section 34(1) for . termination of the tenancy. Section 88(1A) provides that “a protected tenant, whose name stands entered as an owner in the record of rights on the first day of January 1952 in respect of any land fifty acres or more of Jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant, shall not be entitled to any rights or privileges conferred on a protected tenant by the provisions of section 32 or 34.” What section 88(1A) does is to deprive the protected tenant of the rights and privileges conferred on him by section 32 or 34... It does nothing more. Consequently, the right or privilege which the tenant enjoyed under section 34(2-A), that is to say, the retention of possession of half the area of the land leased was lost, and in the result the landlord became entitled to possession of the entire land leased. That section 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant was affirmed by a Full Bench of the Bombay Hich Court in Jansa Baoji: Mali v. Nasarat Jahan Begum “end Others(*) and it was declared that if a tenant fell within - the mischief of section 88(1A), the landlord, on making out a case under section 34(1}, was exempt from the restrictions on his rights imposed ty sub-sections (2) and (2-A) of section 34 because the rights or
-2 \ .% GANPATWANI Vv. DUONDUWAGH (Pathak, J-) 1071.
ia privileges conferred on the tenant by those sub-sections were no ~~ lonecr available to him by reason cf section 88(1A)}. It is beyond - dispute that the landlord obtains his right to terminate the tenancy of- a protected tenant under section 34(1) of the Act,. and that-is what happened in this case. The first appellant was able to terminate the tenancy because of section.34(1). That brings into play section 37(1)} of the Act Section 37(1) declared that “if after the
@ ILL.R. 1959 Bombay, 571,
He
1072, Yoon Pa SUPREME COURT. REPORTS re x - . , \ a ~
(1978] 3 S.C.R.
a oe ttn
A landlord | takes possession of the land after the termination of the tenancy under section 34, he fails to use it for any of the purposes specified in-the notice given under sub-section (1) of section 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from. the date on which he took such possession, the landlord shall forthwith restore possession ‘ ‘of ‘the land to the tenant whose
B tenancy was terminated by veseeeee «It is clear from the record that the first appellant after having taken possession of the land on termination of the tenancy under section 34, ceased to use it for any of the purposes mentioned in the notice within © ‘twelve years from June 14, 1960 the date ‘on which he took possession.’ He sold it to the second appellant on April 2, 1964 and transferred possession
’ to him.” The possession ‘of the second appellant cannot be regarded
C as 'thé possession of the first appellant, and the conclusion must be ~ that the default meritioned in section 37(1) took place and the respondents became entitled to possession of the land. The respondents are entitled to possession of the Iand subject of course, to any limitations placed by, the law i in 1 regard | to their holding. Pat dat,
The appeal ‘fails: and, is “dismissed with costs. a ee
Mee
SRO, 7 oe 7 J.T Appeal dismissed.
AN
MM