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Govinda Zibla Doye Vs. Udhao Dharmaji Nikhade and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 2 and 3 of 1970
Judge
Reported inAIR1972Bom169; ILR1972Bom1000; 1972MhLJ588
ActsTenancy Laws; Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958 - Sections 21(1), 36(1), 43(14-A) and 50
AppellantGovinda Zibla Doye
RespondentUdhao Dharmaji Nikhade and ors.
Appellant AdvocateB.R. Mandlekar, Adv.;S.N. Khardekar and ;R.N. Deshpande, Advs.
Respondent AdvocateP.N. Karekar, Adv.
Excerpt:
a) the case debated on effect of failure to exercise right of purchase as per section 50 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 - it was held that the consequence was irrespective of inaction on the part of the landlord in not taking any steps to take possession of the land from the tenant who had failed to exercise his right of purchase ; b) the case debated on creating tenancy after statutory surrender - it was held that possession after surrender would not enable the person in possession with the right of a tenant ; c) the case debated on limitation for exercise of right of purchase as per section 50 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 - it was held that the tenant could exercise right of purchase with in one.....order1. this judgment shall govern special civil applications nos. 2 and 3 of 1970. the questions involved in these petitions relate to the construction of section 50 of the bombay tenancy and agricultural lands ( vidharbha region) act, 1958, hereinafter referred to as the tenancy act. the petitioner in both these petitions is the tenant and the respondents are the legal representatives of one dharmaji who was the owner of khasra no. 63/1, area 6.76 acres, and khasra no. 63/3/, area 0.52 acre, both situated at village pitichuwa, tahali warora, district chandrapur. petitioner govind had filed an application on 17 - 11 1965 claiming that he was entitled to purchase both the fields which he cultivated as a tenant since the year 1964 - 65 and that he should, therefore, be declared to be the.....
Judgment:
ORDER

1. This judgment shall govern Special Civil Applications Nos. 2 and 3 of 1970. The questions involved in these petitions relate to the construction of Section 50 of the Bombay Tenancy and Agricultural Lands ( Vidharbha Region) Act, 1958, hereinafter referred to as the Tenancy Act. The petitioner in both these petitions is the tenant and the respondents are the legal representatives of one Dharmaji who was the owner of Khasra No. 63/1, area 6.76 acres, and Khasra No. 63/3/, area 0.52 acre, both situated at village Pitichuwa, Tahali Warora, District Chandrapur. Petitioner Govind had filed an application on 17 - 11 1965 claiming that he was entitled to purchase both the fields which he cultivated as a tenant since the year 1964 - 65 and that he should, therefore, be declared to be the owner of these fields. This application was registered as Revenue Case No. 1/59/(14) 65-66. Landlord Dharmaji denied that the petitioner was the tenant and according to him the petitioner was a close relative of his and since he owned land adjacent to the fields in dispute he got his name recorded as a tenant in collusion with the Patwari. It was the landlord's case that both the fields were cultivated by him personally throughout. He also contested the application of the tenant on the grounds that he has no right to purchase the fields.

2. It appears that during the pendency of this application the tenant was dispossessed by the landlord on 13 - 3 - 1966 and the tenant, therefore filed an application on 13 - 6 - 1966 claiming restoration of possession under Section 36 (1) of the Tenancy Act. Both these applications were dealt with by the Additional Tahsildar who was also functioning as the Agricultural Lands Tribunal.

3. On evidence the Agricultural Lands Tribunal held that the application made on 17 - 11 - 1965 was within the period provided by Section 50 of the Tenancy Act, because, according to him, the tenant had cultivated the fields for the period 1 - 4 - 1965 to 31 - 3 1966 also and the application was filed within one year from 1 - 4 - 1965 when the tenancy for the second year was created. The Agricultural Lands Tribunal also determined the price payable by the tenant. Dealing with the application of the tenant under S. 36(1) of the Tenancy Act the Lands Tribunal held that the tenant was entitled to restoration of possession.

4. Against this common order the legal representatives of the landlord filed two separate appeals which were also decided by a common order passed by the Special Deputy Collector. Land Reforms, Chandrapur. The Deputy Collector also took the view that the application filed on 17 - 11 - 1965 was within time and that the tenant was entitled to restoration of possession. He, however, set aside the order of the Agricultural Lands Tribunal determining the purchase price because he found that if the tenant so desired he may exercise the right conferred by Section 41 subject to the provisions of Section 43 (1) of the Tenancy Act. Subject to the modification of the order regarding determination of purchase price the order of the Agricultural Lands Tribunal was upheld.

5. The respondents then filed two revision applications before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal accepted the finding given by the Revenue authorities that the tenancy had initially commenced in the year 1964 -= 65 but on a construction of provisions of Section 50 of the Tenancy Act it held that the application for exercising the right of purchase should have been made within one year from 1 - 4 - 1964 and the application made on 17 -11 - 1965 was, therefore, barred by limitation. So far as the claim for restoration of possession was concerned, the Tribunal found that since the provisions of Sections 41 to 44 were not complied with within one year from the commencement of the tenancy in view of the provisions of Sections 43 (14-A) of the Tenancy Act, the tenancy must be deemed to have been surrendered and the tenant was not entitled to continue in possession. Thus according to the Tribunal the application under Section 36 (1) was liable to be rejected. The Tribunal, therefore, allowed both the revisions and set aside the orders of the Deputy Collector and the Additional Tahsildar and the Agricultural Lands Tribunal. The petitioner tenant has now filed these two petitions. Special Civil Application No.2 of 1970 arises out of the application made under Section 50, while Special Civil Application No.3 of 1970 arises out of the application made under Section 36 (1) of the Tenancy Act.

6. As the questions involved in these two petitions were of general importance and would affect large number of cases arising under Section 50 of the Tenancy Act, I permitted Shri R N Deshpande and Shri S N Kherdekar Advocates to intervene. Shri R N Deshpande supported the contentions raised on behalf of the Landlord and Shri S N Kherdekar supported the contentions raised on behalf of the tenant.

7. The learned counsel appearing on behalf of the petitioner contended that even though the tenancy commenced on 1 - 4 - 1964 the tenant continued to be in cultivating possession in the year 1965 - 66 and a fresh lease must be taken to have been granted by the landlord which commenced on 1 - 4- 1965 and the landlord which commenced on 1 - 4 - 1965 and the period of one year provided by Section 50 of the Tenancy Act must be reckoned with reference to the commencement of the lease from 1965 - 66 and not from the commencement of the lease from 1964 - 65. It was contended that the tenant must be held to be holding over after the end of the lease for the year 1964 - 65 and the application filed on 17 - 11- 1965 could not be rejected as barred by limitation.

8. Shri Kherdekar supported these contentions and contended that the lease for the year 1964 - 65 stood terminated at the end of that year by virtue of the provisions of Section 43 (14-A) of the Tenancy Act and since the landlord had not taken any steps for obtaining possession the continued possession of the tenant must be traceable to a fresh tenancy which must be presumed to have been created by the landlord. Even otherwise, according to the learned counsel, since the landlord had not taken steps for obtaining possession the tenant was entitled in law to continue in possession and was, therefore, in lawful possession of the fields with the result that he would become a deemed tenant under section 6 of the Tenancy Act. This state of circumstances according to the learned counsel, would continue for every year in succession and there will be commencement of a fresh lease at the beginning of every agricultural year and the tenant would be entitled to exercise his right of purchase under S. 50 every year.

9. It is, however, contended on behalf of the respondents by Shri Karekar that the right to purchase the land which is cultivated by a tenant by virtue of a lease granted after 1 - 4 - 1963 is given to him by Section 41 which creates a right of purchase in favour of all tenants and that Section 50 prescribes the limitation for the exercise of the right under Section 41 of the Tenancy Act. According to the learned counsel, where this right of purchase is not exercised within limitation prescribed by Section 50 the right of the tenant to continue in possession comes to an end by virtue of the provisions of Section 43 (14 - A) and since in the instant case the tenant had failed to exercise his right of purchase within the limitation prescribed in Section 50 within one year from 1 - 4 - 1964 on which date the tenancy commenced on the findings of the Revenue authorities, the land must be deemed to have been surrendered to the landlord in view of the provisions of the tenant thereafter of a trespasser who could be evicted under Section 120 (c) of the Tenancy Act.

10. Shri R N Deshpande, who supported the contentions raised by Shri Karekar also contended that the deeming fiction created in sub-section (14-A) of S.43 must be given its full effect and according to him where the tenant failed to exercise his right of purchase for all purposes the land must be deemed to be placed in possession of the landlord and the tenant was not, therefore, entitled to continue in possession and his possession was that of a trespasser who was liable to be evicted under Section 120 (c). It was contended by him that merely because the landlord did not take any steps to obtain possession an inference of a new tenancy being created again could not be drawn and there could not be a fresh commencement of tenancy every year even though the tenant continued in possession.

11. In order to appreciate these rival contentions it is necessary to refer to the material provisions of the Tenancy Act. Section 50 of the Tenancy Act, as it is found to-day, was not in the same form when the Act was first enacted in December, 1958.

12. The original provisions of Section 50 of the Tenancy Act were as follows:-

'50.Right of tenant holding land under tenancy created after specified date to purchase land :- In the case of a tenancy created in any area after the date specified in sub-section (1) of S. 46, every tenant holding land under such tenancy and cultivating it personally shall be entitled to purchase within one year from the commencement of the tenancy so much of such land as he may be entitled to purchase under Section 41 and the provisions of Sections 41 to 44 (both inclusive) shall mutatis mutandis apply to such purchase'.

In the original form the tenancies which were covered by Section 50 were those which were created after 1 - 4 - 1961 because that was the date on which there was a statutory transfer of ownership in favour of certain tenants who were entitled to purchase land under Section 41 of the Tenancy Act. It may be sated that Section 43 did not contain sub - section (14-A) initially and the concept of a deemed surrender of land which is contained in Section 43 (14-A) did not become relevant prior to 12 - 2 - 1962 when sub-section (14-A) did not become relevant prior to 12 - 2- 1962 when sub-section (14-A) was for the first time put on the Statute book by Act no. 2 of 1962. The next amendment of Section 50 was when Maharashtra Act 5 of 1961 was enacted and sub - section (2) was added to that section. It is not necessary to consider the effect of this amendment firstly because it death with creation of tenancies after 1 - 4 - 1961 by a serving member of the armed forces and secondly because this sub-section (2) is now deleted from Section 50. Section 50 was then again amended by Act. No. 2 of 1962 and it is as a result of this amendment that the section is in its present form, except a small part of it which was the result of an amendment by Maharashtra Act No. 30 of 1964. The section which falls for consideration in the present proceedings is as follows :-

'50. Where a tenancy is restored under Section 7, 10, 21, 52 or 128 - A or is created by a landlord not being a landlord within the meaning of Chapter III-A in any area after the date specified in sub-section (1) of S. 49-A, every tenant holding land under such tenancy and cultivating it personally shall be entitled to purchase within one year from the commencement or as the case may be, the restoration of the tenancy so much of such land as he may be entitled to purchase under section 41 and the provisions of Sections 41 to 44 (both inclusive) shall mutatis mutandis apply to such purchase.'

The material amendment in this section was obviously the result of the enactment of Section 49-A in the Tenancy Act by Maharasthra Act No.2 of 1962. By enactment of Section 49-A the legislature provided for a statutory transfer of ownership of all land held by a tenant being land which is not transferred to the tenant under Section 46 or which was not purchased by him under Section 41 or Section 50 with effect from 1 - 4 - 1963, if such land was cultivated personally by the tenant and if certain conditions which are set out in Section 49-A were satisfied. Section 49-A operated notwithstanding anything contained in Section 41 or 46, or any custom, usage, decree, contract or grant to the contrary. Having provided for a statutory transfer of ownership with effect from 1 - 4 - 1963 in respect of lands held by a tenant on that day Section 50 was made applicable in respect of tenancies created after 1 - 4- 1963. Section 50 did not provide only for tenancies which were created after 1 - 4 - 1963 but it also dealt with tenancies which were restored either under Section 7 or 10 or 52 or 28 or 128-A of the Tenancy Act. This section provided that every tenant holding land under such tenancy that is to say, a tenancy which was restored under any one of the sections referred under any one of the sections referred to in that section, or under a tenancy created after 1 - 4 - 1963, by a landlord not being a landlord within the meaning of Chapter III-A of the Tenancy Act, if he was cultivating the land held by him under such tenancy personally he shall be entitled to purchase that land within one year from the commencement or from the restoration of the tenancy as the case may be. The section then provides that the provisions of Section 41 to 44, both inclusive, shall mutatis mutandis apply to such purchase.

13. Now, it is difficult to accept the argument of Shri Karekar that when Section 50 refers to Section 41 the entitlement to purchase is found in Section 41 while Section 50 only lays down the period limitation. Such a construction appears to be contrary to the tenor of the section. Section 50 refers to Section 41 twice. The first reference has been made in order to indicate the extent of the land which the tenant is entitled to purchase under Section 50 of the Tenancy Act. The material words of the section minus all the adjectival clauses would be 'every tenant holding land under such tenancy and cultivating it personally shall be entitled to purchase ........... so much of such land as he may be entitled to purchase under Section 41 ...........' The words 'such land' refers to the land which he holds under tenancy and which he cultivates personally. When it is to be decided whether the tenant is entitled to purchase the entire land which he holds under tenancy and which he cultivates personally, the reference to Section 41 becomes material.. The section says that the tenant is entitled to purchase only so much land as he may be entitled to purchase under Section 41. Section 41 deals with the right of a tenant to purchase land and this right is subject to the provisions of Section 42 in which the extent of the land which the tenant may purchase under Section 41 is set out. The words 'which the tenant may be entitled to purchase under section 41' has obvious reference to the restriction in Section 42. The reference to Section 41 thus is for a specific purpose, namely, to find out the extent of land which the tenant is entitled to purchase. Section 42 is as follows:-

'42. The right of a tenant under Section 41 to purchase from his landlord the land held by him as a tenant shall be subject to the following conditions, namely :-

(a) if the tenant does not hold and cultivate personally any land, as a tenure holder, the purchase of the land by him shall be limited to the extent of three family holdings;

(b) if the tenant holds and cultivates personally any land as a tenure-holder the purchase of the land by him shall be limited to such area as will be sufficient to make up the area of the land held by him as a tenure - holder to the extent of three family holdings.'

These restrictions are thus imported by reference into Section 50 of the Tenancy Act. The effect is that Section 50 not only gives right to the tenant of the kind specified therein a right to purchase land, but with reference to Sections 41 and 42 the extent of the land which the tenant is entitled to purchase is also specified. Section 50 also refers to other conditions, namely, that a tenant must be a tenant who is holding land under a tenancy created after 1 - 4 - 1963 or which is restored to him and he must also be cultivating that land personally. Section 50 is thus a self contained provision dealing with the kinds of tenancies referred to therein, namely, tenancies created after 2 - 4 - 1963 and tenancies restored under any of the provisions mentioned therein. It also deals with the extent of the land which the tenant is entitled to purchase and it also deals with the time within which this right to purchase given by Section 50 must be exercised. As indicated in the section the tenant is entitled to purchase the land within one year from the commencement of the tenancy.

14.It is at this stage that it is contended that there cannot be only one commencement of tenancy, but there could be commencement of tenancy every year if the landlord permits the tenant to continue in possession and does not take immediate steps to obtain possession from a tenant, who has failed to exercise his right within one year. Whether Section 50 contemplates repeated commencement of tenancy or not will depend on what is the effect of the tenant failing to exercise his right of purchase within the specified period. It is here that the concluding part of Section 50 becomes material. The concluding part of Section 50 provides that the provisions of Sections 41 to 44 shall mutatis mutandis apply to such purchase. Where a tenant desires to exercise his right of purchase it cannot be disputed that he has to comply with the requirement of Section 43 of the Tenancy Act. Section 43 (1) (a) no doubt refers to the right conferred by Section 41 but in view of the provision in Section 50 that provisions of Sections 41 to 44 shall apply mutatis mutandis even in a case where a tenant is exercising his right of purchase under Section 50 the provisions of Section 43 will be attracted and S.43 (1) (a) must be read as dealing with a tenant who desires to exercise the right conferred by S. 50. Under sub-clause (a) of sub - section (1) of s. 43 such a tenant has to make an offer to the landlord stating the price at which he is prepared to purchase the land, such price not exceeding twelve times the rent payable by him and the depreciated value of any structures, wells and embankments constructed and permanent fixtures made and the value of any trees planted on the land by the landlord after the period of the last Settlement or where no such Settlement is made during the period of thirty years before the commencement of he Act and the amount of the arrears of rent, if any, lawfully due on the day on which the offer is made. Under subclause (b) of Section 41(1) where the tenant is entitled to purchase a part of the land then he has to choose the area and location of the land to be purchased from the landlord and state in the offer the part which he has so chosen for being purchased. Under sub-section (2) of S. 43 if the landlord refuses or fails to accept the offer and to execute the sale deed within three months from the date of the offer, the tenant has to apply to the Tribunal for the determination of the reasonable price of the land. The further provisions deal with the determination of the purchase price by the Tribunal and under sub -section (8) of S. 43 when the purchase price is deposited in lump sum or the last instalment of the purchase price is deposited the Tribunal is required to issue a certificate of purchase in the prescribed form to the tenant in respect of the land and such certificate is made conclusive evidence of the purchase. Sub section (9) provides that where the tenant fails to pay the entire purchase price within the period fixed under sub-s (4) or (7) or is in arrears of four instalments under sub - section (4) or (7) the amount of the purchase price remaining unpaid and the amount of the interest thereon. If any, is recoverable as arrears of land revenue and on such recovery the Tribunal is to issue the certificate contemplated by sub section (8). Sub - section (10) provides for the purchase becoming ineffective and sub - section (12) provides for the consequences of the purchase becoming ineffective. A reference to these provisions will be necessary at the later stage and these provisions are, therefore, being reproduced;-

43 (10) In the event of failure of recovery as arrears of land revenue under sub-section (9) the purchase shall not be effective and the amount deposited by the tenant shall be refunded to him after deducting the rent due for him for the period:

Provided that if the land is situated in a scheduled area the tenant shall also be refunded the amounts of land revenue and the cases referred to in clauses (c) and (d)of sub-sec (1) of S. 17 paid by him.

(11) .............................................

(12) Where any purchase of land becomes ineffective, the landlord shall be entitled to recover from the tenant the rent to the land as if the land had not been purchased and the rent due, if not paid within the period or extended period referred to in sub-section (13) shall be recovered from the tenant as an arrears of land revenue and paid to the landlord. The amount of rent so recoverable shall be deducted from the amount in any to be refunded to the tenant'.

Under sub-section (14) of S.43 after the issue of the certificate under sub-s, (8) the tenant is to be declared by the Tribunal with effect from the agricultural year next following the date of issue of the certificate. Then we come to the material provisions of sub-section (14-A) which are as follows:

'43 (14-A). If a tenant fails to exercise his right of purchase under Sect. 41 in respect of any land or the purchase of any land becomes ineffective, the land shall be deemed to have been surrendered to the landlord, and thereupon the provisions of sub-sections (1) and (2) of S. 21 and Chapter VII shall apply to such land as if the land was surrendered by the tenant under Section 20'.

This sub-section sets out the consequences of the tenant failing to exercise the right of purchase under Section 41, which, in view of the provisions of Section 50, must also follow where a tenant files to exercise his right of purchase under Section 50 and it also provides for the consequences of the purchase of any land becoming ineffective. The consequences are that the land shall be deemed to have been surrendered to the landlord and thereupon the provisions of sub-sections (1) and (2) of S. 21 shall apply to such land as if the land was surrendered by the tenant under Section 20. The consequence which is set out in this section is that the land is deemed to have been surrendered to the landlord and after such surrender an enquiry is required to be made having regard to the provisions of Section 21 (1) and (2) about the extent of the land which the landlord is entitled to retain with him. Section 21 of the Act provides that where a tenancy is terminated by surrender under sub-section (1) of S.21. the landlord is entitled to retain only so much of land as will prevent the total area which he cultivates personally, whether as tenure - holder or tenant, or both from exceeding three family holdings. Under sub-section (2) if it is found that the landlord is not entitled to retain either the whole or any part of the surrendered land then that land has to be declared as surplus land. Under Section 81 of the Tenancy Act where any land is declared to be surplus land under any of the provisions of the Tenancy Act, the State Government is deemed to have assumed the management of such land for a public purpose from the date of the declaration. reading the provisions of Section 50 and S. 43 (14-A) together it is clear that the intention of the legislature as disclosed in these two provisions was that land in respect of which the tenant has failed to exercise his right of purchase is either to be retained by the landlord if he is so entitled to retain having regard to the provisions of Section 21(1) of the land was to be treated as surplus land of which management was deemed to have been assumed for a public purpose. If that was the intention of the legislature and if sub-section (14-A) of Section 43 contemplated that fictionally surrender has taken place in favour of landlord and consequently how the land was to be dealt with was to be decided with reference to Section 21, it is difficult to accept the contention that because the tenant continues to be in possession after the end of the agricultural year for which the lease was taken and after the tenant had failed to exercise his right to purchase the landlord must be deemed to have granted a second lease for the subsequent year. The statute itself had laid down what consequences follow on the failure of the tenant to exercise his right of purchase under S.50. These consequences follow irrespective of inaction on the part of the landlord in not taking any steps to take possession of the land from the tenant who has failed to exercise his right of purchase.

15.It is difficult to see how the provisions of Section 6 of the Tenancy Act which were sought to be invoked by Shri Kherdekar were attracted. No doubt until the landlord obtains possession from the tenant the tenant continues in possession but that continuance is contemplated by the provisions of the Tenancy Act itself. It is difficult to read in the provisions of Section 50 and Section 43 (14-A) the intention of the legislature that when the statutory surrender comes into effect merely because the possession was lawful the person in possession should again be clothed with the right of a tenant by Section 6 of the Tenancy Act. The commencement of the tenancy which is referred to in Section 50 is the tenancy which is created by a landlord and it does not deal with any deemed tenancy under Section 6. The provisions of Section 43 (14-A) make it impossible for the landlord to deal with the land in any manner other than the one provided by Section 43 (14-A) read with Section 21 of the Tenancy Act and he is incompetent to create any tenancy for a subsequent period of time after the statutory surrender as provided by Section 43 (14-A) has come into operation. Even the concept of holding over by a tenant on which reliance was sought to be placed by Shri Mandlekar is ruled out by the scheme of Section 50 read with Section 43 (14-A) of the Tenancy Act.

16.The consequences contemplated by Section 43 (14-A) of the Tenancy Act so far as the present kind of case is concerned arise only if a tenant fails to exercise his right of purchase. In a case covered by Section 50 of the Tenancy Act these consequences must, therefore, arise where the tenant fails to exercise his right of purchase within one year from the commencement of tenancy. The words 'shall be entitled to purchase within one year' in Section 50 must, therefore, be read in the light of the provisions of sections 43 (14-A) which refer to the tenant's failure to exercise his right of purchase. How the right of purchase is to be exercised is dealt with in Section 43 (1) (a) and in my view what the tenant is required to do within one year when Section 50 refers to the tenant being entitled to purchase the land within one year from the commencement of the tenancy serve a notice as contemplated by Section 43 (1) (a) of the Tenancy Act. In case a tenant invokes the provisions of Section 43 (1) (a) within a period of one year then, in my view, the tenant could be said to have exercised his right of purchase within one year as contemplated by Section 50. By the very nature of the proceedings which is contemplated by Section 43, it is impossible that the entire proceedings or even making of an application could in certain cases be made with a period of one year from the commencement of the tenancy. It would be enough if the first step to exercise the right of purchase, namely, the serving of a notice under Section 43 (1) (a) is served within one year in case a tenant wants to exercise the right which is given to him under Section 50 of the Tenancy Act.

Since the tenancy was created by the landlord for the first time from the agricultural year 19645 - 65 then as found by the Revenue Tribunal the tenant should have exercised his right of purchase as required by Section 43 (1) (a) within the period of one year and the application made on 17-11-1965 was also obviously beyond the prescribed period. The tenant was, therefore, clearly not entitled to statutory ownership as contemplated by Section 50 of the Tenancy Act. Special Civil Application No. 2 of 1970 must, therefore, stand rejected.

17.It is now necessary to decide whether the Tribunal was justified in holding that the tenant was not entitled to make an application under Section 36 (1). The Tribunal has taken the view that the tenant having forfeited his right under Section 50 had no right to continue in possession and consequently he was not entitled to make an application seeking restoration of possession. This view is sought to be supported both by Mr. Karekar and Mr. Deshpande and as already stated it is their contention that since the land is deemed to have been surrendered fictionally under Section 43 (14-A) the tenant became a trespasser and he could be ousted under Section 120 (c) of the Tenancy Act, and since he ceased to be a tenant neither was any application by the landlord under Section 36 (2) necessary nor was the ex-tenant, according to them, entitled to apply for restoration of possession under Section 36 (1) of the Tenancy Act.

18.It is difficult to accept the argument that as a result of the operation of sub-section (14-A) of S. 43 the tenant was intended to be treated as a trespasser by the provisions of the Tenancy Act. It cannot be disputed that where a tenancy was created after 1 - 4 - 1963 there was no express provision in the Act which enabled the landlord to terminate the tenancy of the tenant. The provisions of Section 9 of the Tenancy Act provide that no tenancy of any land shall be terminated merely on the ground that the period fixed for its duration whether by agreement or otherwise has expired. The effect of the provisions enabling the landlord to terminate the tenancy would have been that the tenant would have continued indefinitely in the capacity of a tenant in possession of the land with no remedy to the landlord to obtain possession or to terminate his tenancy. The scheme of Chapter III of the Tenancy Act appears to be that except for some exempted tenants statutory rights of ownership had to be vested in the tenants at some point of time or the other. Under Section 46 this date was 1st April 1961 ; under Section 49-A this date was put as 1st April 1963 and in case of tenants to whom Sections 46 and 49-A applied and where certain proceedings for termination of tenancy were pending these dates of statutory ownership were postponed. But one object which is apparent in the provisions of Chapter III is that either the landlord exercises his right of resumption and takes possession of land or in cases where he fails to exercise such a right or becomes unsuccessful in terminating the lease prior to 1 - 4 - 1963 the ownership is transferred to the tenant. Generally the Tenancy Act does not contemplate that the relationship of the landlord and tenant will continue to exist for an indefinite period of time. In the case of a tenancy created or restored after 1 - 4 - 1963 the legislature did not contemplate continuance of relationship of landlord and tenant beyond one year from the commencement or restoration of tenancy as the case may be. It is in the light of this scheme of the Act that the applicability of Section 43 (14-A) to a case covered by Section 50 will have to be considered. If there was no provision enabling the landlord to terminate the tenancy whether on the ground of personal cultivation or otherwise in the case of a tenant whose tenancy is created after 1 - 4 - 1963 and if one of the objects of Section 50 of the Tenancy Act was not to permit landlord - tenant relationship to continue beyond a year in the case of a tenancy created or restored after 1-4-1963 then the legislature had provided by making the provisions of S.43 (14A) applicable to a case covered by Section 50 to bring about termination of tenancy by providing for a fictional surrender. Surrender is one of the recognised modes of termination of tenancy, but is contemplates acceptance of possession by the landlord when the tenant surrenders it. A mere yielding up of an interest by the tenant in favour of the landlord unless the landlord accepts possession does not bring about termination of tenancy. A voluntary surrender of land by the tenant was obviously impossible in each case at the end of one year of tenancy and it was therefore, that the legislature introduced a deeming fiction by which on the failure of the tenant to exercise his right of purchase the land was deemed to have been surrendered to the landlord. The purpose of the deeming fiction obviously was to bring about the effect of termination of tenancy by deeming that a tenant had surrendered the land. Beyond bring about this result of termination of tenancy by a fictional surrender though actually the land continues to be in possession of the tenant there does not appear to be any other purpose of introducing the fiction that land must be deemed to have been surrendered to the landlord. But for this there could not be any other way of bringing about an end to the relationship of landlord and tenant. The question is whether on account of this fiction it necessarily follows that the tenant becomes a trespasser. Shri Deshpande contended that when the legislature has provided that the land must be deemed to have been surrendered to the landlord it must be held that the land must be deemed to be in possession of the landlord, the tenant was not entitled to be in possession, and therefore, the tenant was a trespasser.

19.Now, there is no doubt that the effect of the effect of the fiction introduced in sub-section (14-A) of Section 43 is that the land must be said to have been surrendered to the landlord by the tenant and the landlord must be said to have accepted the surrender, but merely on this it does not necessarily follow that the person in possession becomes a trespasser. There are several provisions in the Tenancy Act which refer to the tenant whose tenancy has been terminated as a 'tenant'. These provisions were considered by a Full Bench of this court in Madhao v. Maharashtra Revenue Tribunal, Nagpur, : AIR1971Bom106 (FB). In paragraph 17 of the judgment the Full Bench has referred to the provisions of Sections 19, 29, 36, 57-B (2) and 36 (2) of the Tenancy Act. The Full Bench was considering the question whether in a case where a tenant has surrendered his tenancy under Section 20 of the Tenancy Act an order under Section 36 s contemplated by Section 36 (2) was necessary, to be obtained before the landlord took possession. A similar argument was advanced in that case and it was contended that where tenancy is terminated by surrender and it is verified then the person who was holding the land ceased to be a tenant, and therefore possession can be taken from him without an order of Tahsildar. This argument was repelled and it was held that even in a case where a tenancy was necessary because the person was still referred to as a tenant by the Tenancy Act. There is no reason to take a different view with regard to the provisions of Section 43 (14-A) because it will appear from the provisions of sub-section (10) of Section 43 that even after the purchase has become ineffective the person in possession has been referred to as the tenant in the Act. Sub-section (10) of section 43 provides that in the event of failure of recovery as arrears of land revenue under sub-section (9) the purchase shall not be effective and the amount deposited by the tenant shall be refunded to him after deducting the rent due from him for the period. Then there is sub-section (12) which says that where any purchase of land becomes ineffective the landlord shall be entitled to recover from the tenant the rent of the land as if the land had not been purchased and the rent due, if not paid within the period or extended period referred to in subsection (13) , shall be recovered from the tenant as an arrears of land revenue and paid to the landlord. Thus even in a case where a purchase becomes ineffective the person in possession is referred to as the tenant and there is an express liability on him to pay rent. In subsection (14-A) itself a person failing to exercise his right of purchase is referred to as a tenant. Sub-section (14-A) comes into operation after the tenant has failed to exercise his right of purchase, and therefore, provides for a set of events subsequent to the last day before which he must exercise his right of purchase. Even in such a provision the person is referred to as a tenant.

20.The purpose of the fiction in Section 43 (14-A) was only to bring about termination of tenancy by surrender for which otherwise actual delivery of possession would have become necessary, but in view of the fiction it was no longer necessary. The person who continued to be in possession would still continue to be lawfully in possession until he is dispossessed by an order of the Tahsildar under Section 36 (2) of the Tenancy Act. The landlord does not cease to be landlord and the tenant whose tenancy was terminated was still described by the Tenancy Act as a tenant and in view of the plenary provision in Section 36 (2) that save as otherwise provided in sub-section (3-A), no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by a tenant except under an order of the Tahsildar the landlord has no right to obtain possession privately.

21.There is another reason why it should be improper to hold that the landlord need not approach the Tahsildar for an order for possession. In a given case a landlord may not be entitled to the whole or any part of the land in respect of which the statutory surrender had operated. An enquiry is required to be made whether any part of the land becomes surplus land. the proper forum for making such an enquiry is the Tahsildar and the proceeding in which such an enquiry could be made is the proceeding initiated by the landlord asking for possession. The provisions of Section 120(C) are by themselves of a summary nature and if a detailed enquiry is contemplated by provisions of Section 21 (1) and (2) then that enquiry could only be made by the Tahsildar. If the construction canvassed on behalf of the landlord is accepted then there will be no forum in which the enquiry contemplated by Section 21 (1) and (2) could be made. It is not, therefore, possible for me to accept the contention that because of the fiction in sub-section (14A) of Section 43 the tenant becomes a trespasser and no order for possession is necessary under Section 36 (2) of the Tenancy Act.

22.In the instant case the landlord has admittedly taken possession without an order of a Tahsildar. The tenant has, therefore, been evicted in contravention of sub-section (2)of Section 36 because he was entitled to continue in possession till he was evicted by an order of the Tahsildar under sub-section (2) of Section 36. He was, therefore, clearly entitled to maintain his application for restoration of possession though his tenancy stood surrendered by virtue of Section 43 (14-A) of the Tenancy Act. It is not, therefore, possible to sustain the view taken by the Tribunal that merely because he had failed to exercise his right of purchase within the period of one year as prescribed by Section 50 he had lost the right to continue in possession. The order of the Tribunal rejecting the application under Section 36 (1) must, therefore, be quashed and it must be held that the tenant having been dispossessed in contravention of Section 36 (2) of the Tenancy act was entitled to restoration of possession. Special Civil Application No.3 of 1970 which arose out of the application for restoration of possession is, therefore, allowed.

23. In the circumstances of the case there will be no order as to costs in both the Special Civil Applications.

24. Appeal allowed.


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