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Dattatraya Sadashiv Dhond Vs. Ganpati Ranghu Gaoli - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1174 of 1963
Judge
Reported in(1965)67BOMLR521; 1965MhLJ881
AppellantDattatraya Sadashiv Dhond
RespondentGanpati Ranghu Gaoli
Excerpt:
hyderabad abolition of inams and cash grants act (hyd. viii of 1955), sections 1, 2, 3, 5, 6, 33-hyderabad tenancy and agricultural lands act (hyd. xxi of 1950), sections 44, 32, 19, 28-hyderabad tenahcy and agricultural lands rules, 1958. rule 28-inam abolished from july 20, 19s5 under act in respect of land leased to tenant before that date-subsistence of relationship of landlord and tenant after such date-tenancy under hyderabad tenancy act when terminates-conditions under which inamdar or other person entitled to rights of occupant under section 5 or 6 of hyderabad abolition of inams and cash grants act.;in cases in which the inam was abolished with effect from july 20, 1955, under the hyderabad abolition of ihams and cash grants act, 1954, and in which the inam land had been leased.....h.k. chainani, c.j.1. these three applications raise questions relating to the interpretation of the provisions of the hyderabad abolition of inams and cash grants act, 1954, hereinafter referred to as the act. the petitioner in special civil application no. 1174 of 1963 was the holder of two madam mash inam (personal inam) lands. opponent no. 1 was the tenant of the lands. as the lands were not service inam lands, the hyderabad tenancy and agricultural lands act, 1950 (hereinafter referred to as the tenancy act) applied to them. on july 20, 1955, the inam was abolished by the inams abolition act. all the provisions of the act did not however come into force on that date. on december 16, 1958, the petitioner gave a notice to opponent no. 1 terminating his tenancy under sub-section (1) of.....
Judgment:

H.K. Chainani, C.J.

1. These three applications raise questions relating to the interpretation of the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, hereinafter referred to as the Act. The petitioner in Special Civil Application No. 1174 of 1963 was the holder of two Madam Mash Inam (Personal Inam) lands. Opponent No. 1 was the tenant of the lands. As the lands were not service inam lands, the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the Tenancy Act) applied to them. On July 20, 1955, the Inam was abolished by the Inams Abolition Act. All the provisions of the Act did not however come into force on that date. On December 16, 1958, the petitioner gave a notice to opponent No. 1 terminating his tenancy under Sub-section (1) of Section 44 on the ground that ho required the lands bona fide for cultivating them personally. On March 31, 1959, he made an application to the Tehsildar for obtaining possession of the lands. On July 1, 1960, all the remaining provisions of the Act came into force. On December 15, 1960, the Tehsildar made an order allowing the petitioner to resume the lands. This order was confirmed in appeal by the Deputy Collector. It was set aside in revision by a Full Bench of the Maharashtra Revenue Tribunal. The Tribunal took the view that after the abolition of the Inam with effect from July 20, 1955, the petitioner had no rights left in the lands and that consequently the application made by him under Section 44 of the Tenancy Act was not maintainable. Against the order made by the Revenue Tribunal the petitioner has filed the present special civil application.

2. In Special Civil Application No. 1435 of 1963 the petitioners are the holders of a land, which is said to be Deshmukh Inam. Such inams were abolished with effect from July 1, 1960, under Sub-section (2A) of Section 1 read with Sub-section (1) of Section 3 of the Act. On March 26, 1959, the petitioners made an application for possession of the land under Section 32 read with Section 44 of the Act. This application, has been rejected by the Revenue Tribunal on the ground that after the abolition of the inam, the petitioners had no rights left in the land and that consequently they could not resume the land under Section 44.

3. The petitioner in Special Civil Application No., 697 of 1964, was the holder of three inam lands. The inam was abolished with effect from July 20, 1955. In 1956 the tenant opponent No. 1 surrendered all his tenancy rights and in pursuance of the order made by the Tehsildar the possession of the lands was delivered to the petitioner. The petitioner was, therefore, in possession of the lands on July 1, 1960, After Sections 5 and 6 of the Act came into force, the Tehsildar held that as the tenant was in possession of the lands on July 20, 1955, the occupancy rights should be granted to him. This order was confirmed in appeal by Government and is being challenged in this application.

4. As the questions involved in these applications arise in many other cases, they have been referred to a Full Bench....

5. The questions, which arise for consideration by the Pull Bench, may be formulated as under:

(1) Whether in, cases, in which the inam was abolished with effect from July 20, 1955, under the Hyderabad Abolition of Inams and Cash Grants Act,' 1954, and in which the inam land had been, leased, to a tenant before that date, the relationship of landlord and tenant continued to subsist between July, 20, 1955, and July 1, 1960, and whether the provisions of the Hyderabad Tenancy and Agricultural Lands Act applied thereto?

(2) Whether under the provisions of the Hyderabad Tenancy and Agricultural Lands Act, the tenancy of a land terminates on the date on which the land holder makes an application for possession of the land to the Tehsildar, as provided in Sub-section (2) of Section 44 of the Act or on the date on which the Tehsildar makes an order for possession of the land being' restored to the landlord ?

(3) Whether in order to be entitled to the rights of an occupant under Sections 5 or 6 of the Hyderabad Abolition of Inams and Cash Grants Act, as the ease may be, the inamdar or other person should have been, in possession of the land on July 20, 1955, or July 1, 1960?

(4) Whether the inamdar is entitled to the rights of an occupant under Sections 5 or 6 of the Hyderabad Abolition, of Inams and Cash Grants Act, 1954, as, the case may be, if in the application for possession made by him under the Hyderabad Tenancy and Agricultural Lands Act-

(a) a final order for possession had been made in his favour before July 1,1960,

(b) an order for possession had been made before July 1, 1960, but against which an appeal or revision or other proceeding in a superior Court was pending on that date, or

(c) no order for possession was made in favour of the inamdar before July 1, 1960?

In order to answer these questions, it is necessary to refer to the relevant provisions of the Act. The Act was published on July 20, 1955. It was amended with retrospective effect by the Hyderabad Abolition of Inams (Amendment) Act, 1956. Sub-section (2) of Section 1 of the amending Act states that it shall be deemed to have come into force on July 20, 1955, that is, on the same date on which the parent Act had been published in the Official Gazette. The Act was further amended in 1959 by the Hyderabad Abolition of Inams (Amendment) Act, 1959. Sub-section (2) of Section 1 of the Act states that it shall be applicable to all inams except-

(i) inams held by or for the benefit of charitable and religious institutions;

(ii) inams held for rendering village service useful to the Government or to the village community including sethsendhi, neeradi and balutha inams.

Sub-section (2A) provides that on the coming into force of the Hyderabad Abolition of Inams (Amendment) Act, 1959, this Act shall apply also to cash grants and inams of the nature of community service inams and watans. Sub-section (3) of Section 1 is in the following terms:

(3)(a) This section, Section 2, Section 3 except Clauses (d), (g), (h) and (i) of Sub-section (2), Sections 30 to 34 (both inclusive), Section 35 to the extent to which it enables rules to be made for the purposes of the aforesaid sections, Section 36 and Section 37, shall come into force on the date of publication of this Act in the Official Gazette;

(b) the rest of this Act shall come into force on such date as the Government may by notification in the Official Gazette, appoint in this behalf.

The Act was published on July 20, 1955. The date appointed by the State Government under Clause (b) is July 1, 1960. Consequently the provisions referred to in Clause (a) of Sub-section (3) came into force on July 20, 1955, while the remaining provisions came into force on July 1, 1960.

6. Clause (b) in Sub-section (1) of Section 2 defines the expression 'date of vesting' as meaning- when used-

(i) in Sub-section (I), Sub-section (2) with reference to Clauses (a), (b), (c), (e) and (f), and Sub-section (3) of Section 3 and Section 34, means,-

(A) in the case of inams other than those specified in Clauses (i) and (ii) of Sub-section (2A) of Section 1, the date of the publication of this Act in the Official Gazette, and

(B) in the case of inams and cash grants to which this Act shall apply under Sub-section (2A) of Section 1, the date of the coming into force of the Hyderabad Abolition of Inams (Amendment) Act, 1959;

(ii) elsewhere in this Act the date appointed by the Government under Clause (b) of Sub-section (3) of Section 1;

There are no Clauses (i) and (ii) in Sub-section (2A) of Section 1. The reference to Sub-section (2A) of Section 1 in Sub-clause (A) of Clause (i) in the definition is, therefore, a mistake. The reference obviously is to Sub-section (2) of Section 1. The State Government has issued a notification under Clause (ii) appointing July 1, 1960 as the relevant date. It will be seen that the date of vesting is not the same in the case of all inaras. In respect of inams abolished by the amending Act of 1959, to which Sub-section (2 A) of Section 1 applies, the date of vesting is July 1, 1960. In respect of the other inams the date of vesting is July 20, 1955, with reference to the provisions-referred to in Clause (i) of the definition of 'date of vesting' and July 1, 1960 with reference to the remaining provisions of the Act. Section 2A states that if any question arises whether any land is an inam, whether any inam is held, with or without conditions of service, whether any person is a, kabiz-e-kadim, permanent tenant or tenant, or in regard to other matters mentioned in this section, the State Government or the officer authorised by that Government shall decide the question. Sub-section (2) of this section provides for an appeal to the State Government where any question is decided by an officer authorised by the State Government.

7. Sub-section (1) of Section 3 is in the following terms:

(1) Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with, effect from the date of vesting, all inams to which this Act is made applicable under Sub-section (2) or Sub-section (2A) of Section 1 of this Act shall be deemed to have been abolished and shall vest in the State.

Sub-section (2) of this section provides:

Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting, the following consequences shall ensue, namely:-

(a) the provisions of the Land Revenue Act, 1317 Fasli relating to inams, and the provisions of the Hyderabad Atiyat Enquiries Act, 1952 and other enactments, rules,, regulations and circulars in force in respect of Atiyat grants shall, to the extent they are-repugnant to the provisions of this Act, not apply and the provisions of the Land Revenue Act, 1317 Fasli, relating to unalienated lands for purposes of land revenue, shall apply to the said inams;

(b) all rights, title and interest vesting in the inamdar, Kabiz-e-Kadun, permanent tenant and tenant in respect of the inam land, other than the interests expressly saved by or under provisions of this Act and including those in all communal lands, cultivated and uncultivated lands (whether assessed or not), waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works,. fisheries and ferries, shall cease and be vested absolutely in the State free from all encumbrances;

(c) all such inam lands shall be liable to payment of land revenue;

Explanation.-In the case of an inam land in respect of which the settlement of assessment has not been made under the Land Revenue Act, 1317 Fasli, the amount of land revenue thereon shall be assessed under Section 52 of that Act with effect from the date of vesting under this section.(d) all rents and land revenue including cesses and royalties, accruing in respect of such inam lands, on or after the date of vesting, shall be payable to the State and not to the inamdar, and any payment made in contravention of this clause shall not be valid;..,

(h) the relationship with regard to inam land as between the inamdar and Kabiz-e-kadim, permanent tenant or tenant shall be extinguished;

(i) the Inamdar, Kabiz-e-kadim, permanent tenant and a tenant of inam lands and any person holding under them and a holder of an inam, shall, as against the Government be entitled only to such rights and privileges and be subject to such conditions as are provided for under this Act and any other rights and privileges which may have accrued1 to any of them in the inam before the date of vesting against the inamdar shall cease and shall not be enforceable against the Government or the inamdar....

Out of these, Clauses (a), (b) and (c) came into force on July 20, 1955, while the remaining clauses did not come into force until July 1, 1960. Sections 5 and 6. provide for the grant of occupancy rights to the persons in possession. Sub-section (1) of Section 5 is as under:

(1) In the case of an occupied land comprised in an inam including a community service inam or watan, which under the terms of the grant or commutation settlement was to continue in perpetuity and was alienable without the permission of any competent authority-

(i) if it is in the possession of a Kabiz-e-kadim, or of a permanent tenant or tenant holding from the inamdar, such Kabiz-e-kadim, permanent tenant or tenant, and

(ii) in other cases, the inamdar shall be primarily liable to the State Government for the payment of land revenue due in respect of the land held by him and shall, subject to the provisions of Sub-sections (2), (3), (4) and (5), be entitled to all the rights and be liable to all the obligations in respect of such land as an occupant under the Land Revenue Act, 1317 Fasli, and the rules made thereunder.

Sub-section (1) of Section 6 similarly provides for the grant of occupancy rights to the person in possession of an occupied land comprised in an inam other than land to which the provisions of! Section 5 apply.. Section 33 provides for the continuing application of the Tenancy Act. This section transfer as under:

Nothing in this Act shall in any way be deemed to affect the application of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950, to any inam or the mutual rights and obligations of an inamdar and his tenants, save in so far as the said provisions are in any way inconsistent with the express provisions of this Act.

I may here also refer to Section 4 of the amending Act of 1956, which provides that with effect from the date of the publication of the principal Act in the Official Gazette, that is, July 20, 1955, and till the commencement of the provisions mentioned in Clause (b) of Sub-section (3) of Section 1, that is, July 1, 1960, the full land revenue payable in respect of every inam abolished and vesting in the State shall be recovered from the inamdar of such inam as if he were the occupant of such land.

8. Before we deal with the questions, which arise for our determination, we consider it necessary to observe that this Act and the subsequent amendments made to it have not been drafted with that care which may reasonably be expected having regard to the fact that the Act affects the vested rights in property of inamdars and several other persons. The Act contains conflicting provisions with the result that it is difficult to find out what exactly the Legislature intended. There are also grammatical and spelling mistakes. If, therefore, we have given to some of the provisions of the Act a meaning which the language used may not strictly justify, it is due to the fact that that is the only way in which we can resolve the conflict between the different provisions of the Act and find a solution for the Chinese puzzle which they have posed.

9. Mr. Adik has contended, and the same argument has been adopted by Mr. Deshmukh, that the vesting of an inam in the State under Sub-section (1) of Section 3 with effect from July 20, 1955, that is, the date from which the inam was abolished, was absolute and unqualified, that all rights, title and interest vesting in the inamdar and other persons in the inam land ceased and that, therefore, the relationship previously existing between the inamdar and his tenant came to an end on the same date. It has been urged that Sub-section (2) mentions only some consequences of abolition of inams. The language used in Sub-section (1) supports this argument, because under this sub-section the whole grant was cancelled and whatever was granted or held in inam was to vest in the State. If, therefore, the grant was of the land, the land was to vest in the State. If, however, this was to be the result of the vesting,; then it is not easy to understand why Clause (b) in Sub-section (2) refers to interests expressly saved by or under the provisions of the Act. Also in that case it would not have been necessary to include Section 33 in the Act. If all the rights of the inamdar and his tenant vested in the State on July 20, 1955, the relationship of landlord and tenant also ceased on that date and the Tenancy Act could no longer govern that relationship. Section 33 must have been enacted with some purpose and must, therefore, be given some meaning. Section 4 of the amending Act of 1956 imposes a liability on the inamdar to pay land revenue of the inam land for the period from July 20, 1955 to July 1, 1960. This liability would not have been imposed upon him if he had been deprived of all his rights in the inam land. The word 'vest' does not have a fixed connotation, meaning in all cases that the property is owned by the person or authority in whom it vests. It may vest in title, or it may vest in possession or it may vest in a limited sense, see Fruit & Vegetable Merchants Union v. Delhi Improvement Trust. : [1957]1SCR1 . Having regard to the provisions, to which I have just referred, it seems to us that Sub-section (2) of Section 3 explains what vesting under Sub-section (1) means and specifies the rights, title and interest, which vest in the State by reason of the abolition of the inam.

10. Clause (b) in Sub-section (2) of Section 3 provides- that all rights, title and interest vesting in the inamdar, permanent tenant and tenant in respect of inam land, other than the interests expressly saved by or under the provisions of this Act, shall cease and be vested absolutely in the State free from all encumbrances, with effect from the date of vesting, July 20, 1955. This clause, therefore, saves from vesting in the State the interests expressly saved by or under the provisions of the Act. The only provisions of the Act, which save any interest, are those contained in Section 33. This section provides for two things:

(1) The continued application of the Tenancy Act and

(2) it saves the mutual rights and obligations of an inamdar and his tenant. In the context 'mutual rights and obligations' can only mean the mutual rights and obligations under the Tenancy Act. It may be noted that Section 33 itself contains a saving clause that the provisions of the Tenancy Act shall apply save in so far as they are inconsistent with the express provisions of the Act. Section 33 read with Clause, (b), therefore, saved from vesting in the State the mutual rights and obligations of an inamdar and his tenant, which were not inconsistent with the express provisions of the Act. These rights and obligations were the right of the inamdar to receive rent and recover possession of the inam land subject to the restrictions contained in the Tenancy Act and the right of the tenant to continue in possession of the land and to enjoy its income subject to his liability to pay rent and to restore possession to the inamdar in accordance with the provisions of the Tenancy Act. Clauses (d), (h) and (i) also show that the mutual rights and obligations of an inamdar and his tenant were intended to be saved and did not vest in the State on July 20, 1955. It is true that these clauses did not come into force till July 1, 1960, But they were part of the Act even on July 20, 1955 and can, therefore, be looked at for the purpose of ascertaining the true intention of the Legislature. Under Clause (d) all rents became payable to the State after July 1, 1960, which was the date of vesting for the purpose of this clause. The necessary inference, therefore, is that till that date the rent was payable by the tenant to the inamdar. Clause (h) states that on the date of vesting, that is, July 1, 1960, the relationship with regard to inam land as between the inamdar and his tenant shall be extinguished. The relationship, therefore, continued till that date. Clause (i) provides that with effect from the date of vesting, which for the purposes of this clause was July 1, 1960, any rights and privileges which may have accrued to any person in the inam before the date of vesting against the inamdar shall cease and shall not be enforceable against the Government or the inamdar. The rights in respect of the inam land, therefore, became unenforceable against the inamdar from July 1, 1960.

11. It is clear from these provisions that the Legislature intended to save mutual rights and obligations of an inamdar and his tenant and to continue the mutual relationship between them during the period from July 20, 1955 to July 1, 1960. This is also suggested by Section 4 of the amending Act of 1956. As the inamdar was made liable to pay land revenue to Government, he was also given a right to recover rent from his tenant. There has been some argument before us in regard to the words 'as if he were the occupant of such land' in Section 4 of the amending' Act of 1956. These words were used because Sections 5 and 6 relating to-the grant of occupancy rights did not come into force till July 1, 1960. The intention, therefore, appears to have been that till that date the inamdar's right to the possession of the inam land and his liability to pay land revenue should continue as if he was an occupant.

12. This view also appears to be in accordance with the object and scheme of the Act. The object of the Act as stated in the preamble was to provide for the abolition of inams and cash grants. The various provisions of' the Act show that it was not intended to disturb the possession of the person, who was. actually in possession, or to take possession from. him. The Act has, therefore, provided for the grant of occupancy rights to the person in possession of the inam land. These occupancy rights could not be granted before July 1,1960, when Sections 5 and 6 came into force. Till then the relationship between the inamdar and his tenant was allowed to continue and they could enforce mutual rights and obligations. The land holder could, therefore, make an application, for possession to the Tehsildar and the tenant was competent to surrender his tenancy rights.

13. The mutual rights and obligations were governed by the Tenancy Act before July 20, 1955. There is no dispute that this Act applied to inam lands other than service inam lands. Section 102 of the Tenancy Act, as it stood on July 20, 1955, provided that nothing in the preceding sections of the Act shall apply to lands leased by Government. It is not disputed before us that even after the inam was abolished, the inam land cannot be said to have been leased by Government to the inamdar's tenant, who was allowed to continue in possession. The Tenancy Act, therefore, continued to apply. 'With effect from June 8, 1958, Section 102 was replaced by Section 102A and some other sections. Clause (a) in Section 102A provides that nothing in the preceding provisions of the Act shall apply to lands leased or held by Government. The corresponding words in Section 88 of the Bombay Tenancy Act are 'lands belonging to or leased by Government.' The word 'hold' is not denned in the Tenancy Act. Clause (z) in smb-s, (1) of Section 2 of the Tenancy Act states that words and expressions used in this Act but not defined therein shall have the meaning assigned to them in the Hyderabad Land Revenue Act. The expression 'to hold' is denned in Section 2(vi) of the Land Revenue Act to mean to be lawfully in possession of land, whether such possession is actual or not. In many cases this Court has, therefore, taken the view that the word 'held' implied possession of the person concerned, see Ramjivam, Birdichand v. Pandu (1961) Special Civil Application No. of 1960, decided by Chainani C.J. and Gokhale J., on March 1, 1961 (Unrep.) and Deolal Bulakhi v. Kadu Tolaram. : AIR1957Bom68 . It has been contended by the learned Government Pleader that after the inam was abolished, the title to the inam land vested in Government and that consequently Government was in constructive possession of it with effect from July 20, 1955. The mutual rights and obligations of an inamdar and his tenant, which were saved by Clause (b) in Sub-section (2) of Section 3 read with Section 33, included a right to possession. After the abolition of the inam, the tenant, therefore, continued in possession not by reason of any authority or permission granted by Government, but because this right and. the inamdar's right to recover possession in accordance with law did not vest in. Government until July 1, 1960. The tenant was also liable to pay rent to the inamdar and not to Government, which was only entitled to receive land revenue. The scheme of the Act also shows that while the Act abolishes the inams, it does not provide for resumption of possession of the inam land. There is no provision in the Act empowering Government to resume possession or to evict the person in possession (except when occupancy price is not paid). Government cannot,, therefore, be said to have been even in constructive possession of the inam land after July 20, 1955, when the inam, was abolished. The land cannot, therefore, be said to have been held by Government within the meaning of Clause (a) in Section 102A of the Tenancy Act. The operation of this Act was, therefore, not excluded with effect from June 8, 1958. The Act continued to apply till July 1, 1960, when under Clause (h) in Sub-section (2) of Section 3 the relationship between the inamdar and his tenant was1 extinguished. The provisions of the Tenancy Act, under which a tenancy cannot be terminated except as provided in this Act, became inconsistent with the express provisions contained in Clause (h) of the Act, which extinguished the relationship between the inamdar and his tenant. The mutual rights and obligations of the inamdar and his tenant were no longer saved by Clause (b) in Sub-section (2) of Section 3 read with Section 33 of the Act and all rights, title and interest of both the inamdar and his tenant in the inam land thereafter vested in Government. From the same date the person in possession of the land became entitled to all the rights of an occupant under the Land Revenue Act.

14. The position, therefore, is that on July 20, 1955, all rights, title and interest in the inam land vesting in the inamdar and his tenant ceased and became Tested in Government free from all encumbrances, except the mutual rights and obligations of the inamdar and his tenant under the Tenancy Act, which were saved for a limited period upto July 1, 1960. The inam, land lost its inam character and ceased to be governed by the special laws relating to inam lands previously applicable to it. The Land Revenue Act became applicable and the land became liable to payment of land revenue. The State acquired title to and proprietary rights in the land, but possession of the land was to continue with the tenant subject to his liability to pay rent to the inamdar and to the right of the inamdar to recover possession from him in accordance with law. This relationship between the inamdar and-his tenant came to an end on July 1, 1960, when the person in possession became entitled to the rights of an occupant under the Land Revenue Act.

15. Mr. Deshmukh has relied on the decision of a Division Bench of this Court in Nama Bamdmle v. Shambhajirao. (1961) Special Civil Applications Nos. 845 and 896 to 900 of 1960, decided by Chainani C.J. and Tambe J., on January 24, 1961 (Unrop.). In these applications it was held that after an inam was abolished, the ownership of the inam land did not stand transferred to and vest in the tenant under Section 38E of the Tenancy Act. That decision is correct, because Section 38B provides for the transfer of the ownership rights of the landholder to the protected tenant. As after July 20, 1955, the title to the land vested in the State, the landholder had no ownership rights left which the tenant could purchase under Section 38 and which could be transferred to him under Section 38B. The judgment contains observations that the rights of the tenant had come to an end with effect from July 20, 1955. For the reasons, which we have given, those observations do not appear to be quite correct.

16. In regard to the second question, Sub-section (1) of Section 44 of the Tenancy Act provides that a landholder may after giving notice to the tenant and making an application for possession as provided in Sub-section (2), terminate the tenancy of any land, if the landholder bona fide requires the land for cultivating it personally. Sub-section (2) states that, the notice required to be given under Sub-section (1) shall be in writing and shall state the purpose for which the land holder requires the land and that an application for possession under Section 32 shall be made to the Tehsildar. Two things are, therefore, necessary for terminating a tenancy under Sub-section (1) :

(1) A notice must be given to the tenant stating that the landholder requires the land far cultivating it personally, and

(2) the landholder must make an application for possession to the Tehsildar under Section 32 of the Act.

If these requirements are complied with, the tenancy stands terminated. Sub-section (2) of Section 32, provides that no landholder shall obtain possession of any land or dwelling house held by a tenant, except under an order of the Tehsildar, for which he shall apply in the prescribed form. A tenant is, therefore, entitled to continue in possession of the land until the Tehsildar has made an order for possession being restored to the landholder. It has, therefore, been urged that he continues to be a tenant until the Tehsildar has made his order. The manner in which a tenancy is to be terminated is, however, laid down in Section 44. Under this section the tenancy terminates when after giving the requisite notice the landholder makes an application for possession to the Tehsildar. Thereafter the tenant's possession is not unlawful, but it is not held by him as a tenant. He has an estate in possession, which he will lose if the Tehsildar makes an order in favour of the landholder. If, however, the Tehsildar rejects the application of the landholder, the termination of tenancy by the landholder will become ineffective. The tenancy will revive and the tenant will continue in possession as if his tenancy had not been terminated. In this connection reference may be made to Sections 19 and 28. Section 19 provides for termination of a tenancy on other grounds, one of which is failure to pay rent within the prescribed time. The first proviso in Sub-section (2) states that no tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub-section, unless the landholder gives six months' notice in writing intimating his intention to terminate the tenancy and the grounds for such termination. Six months' notice as provided in this sub-section is, therefore, required for terminating a tenancy. Sub-section (1) of Section 28 is in the following terms:

(1) Where a tenancy of any land held by a tenant is terminated for non-payment of rent and the landholder files any proceeding to eject the tenant, the Tehsildar shall call upon the tenant to tender to the landholder the rent in arrears together with the cost of proceeding within ninety days from the date of the order, and, if the tenant complies with such order, the Tehsildar shall, in lieu of making an order of ejectment, pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been terminated.

The opening words of this sub-section make it clear that a proceeding to eject a tenant can be instituted after the tenancy has been terminated, that is to say, an application for possession can be made to the Tehsildar under Section 32 only after the tenancy has been terminated. A tenancy is, therefore, terminated by the notice given under Sub-section (2) of Section 19 and an order of the Tehsildar is not required for this purpose. In fact until the tenancy is terminated, the landholder does not get a right to possession of the land. The words 'as if the tenancy had not been terminated' at the end of the sub-section also imply that the tenancy had previously been terminated. Section 28, therefore, also shows that a tenancy is terminated by giving a notice to the tenant and that it does not continue until the Tehsildar has made an order for possession of the land.

17. Sub-section (10) of Section 44 states that the State Government shall provide by rules for-

(iv) the time when the termination of tenancy will take effect.

Rule 28 of the Hyderabad Tenancy and Agricultural Lands Rules prescribes the manner of conducting inquiries into applications for possession of lands made under Section 44. Sub-rule (5) of this rule states that if the Tehsildar grants the application, the termination of the tenancy of the land, in respect of which the application is granted, shall take effect from the commencement of the year following the year in which the application is granted. It has been contended by Mr. Deshmukh that as under these provisions the termination of the tenancy does not take effect until the commencement of the revenue year following that in which the application is granted, the tenancy continues up to that time. These provisions must, however, be read along with Sub-section (1) of Section 44, which lays down the manner in which a landholder may terminate a tenancy. Under this sub-section a tenancy is terminated when after giving the prescribed notice the landholder makes an application for possession. The words used in Sub-section (10)(iv) are not 'when the tenancy will be deemed to have been terminated', but 'when the termination of tenancy will take effect.' These words imply that the tenancy had terminated earlier and that the rules may provide for the time when effect is to be given to the termination of the tenancy, i.e. when the consequences of the termination of the tenancy will issue. It seems to us, therefore, that Sub-rule (5) of Rule 28 only provides for the time when the consequences, which arise from the termination of the tenancy, will take effect, that is, when the landholder will be entitled to obtain actual possession of the land.

18. The view, which we are taking, is in accordance with that taken by a Full Bench of this Court in Ganpati Appa v. Maruti Bala. : AIR1962Bom75 F.B. That decision was given under corresponding provisions of the Bombay Tenancy Act. It was held that a tenancy terminates on the expiry of the period of notice given by the landlord to his tenant terminating his tenancy. A distinction was drawn between the right to terminate a tenancy and the right to obtain possession and it was held that the right to possession accrues on the termination of -the tenancy, that is, on the expiry of. the period of notice given by the landlord to the tenant. Similar view was taken in Ramchandra Anant v. Janardan : AIR1963Bom79 , F.B., where at p. 641 it was observed:.Under the ordinary law, if a tenant continues in possession after his tenancy has been determined, his possession is protected by law and he cannot be ousted except in due course of law, but he has no right to possession after the termination of tenancy. Under the Tenancy Act, however, even after his tenancy has been determined by a notice given by his landlord, the tenant has a legal right to continue in possession, until the Mamlatdar has made an order for possession being restored to the landlord. During the intervening period, the tenant has an estate in possession, of which he can only be deprived by an order of the Mamlatdar.

In our opinion, therefore, the tenancy terminates when the landholder makes an application for possession of the land to the Tehsildar as provided in Sub-section (2) of Section 44.

19. The next question which arises for consideration is about the date, possession on which would entitle the inamdar, Kabiz-e-kadim, permanent tenant or tenant holding from the inamdar to the rights of an occupant under Section 5 or 6, as the case may be. These sections provide for grant of occupancy rights in occupied land, which is denned in Clause (g) of Section 2 to mean inam land, which is not uncultivated land, waste land, pasture land or forest land or not comprising a mine, quarry, tank, irrigation works, stream or river and which is in the actual or constructive possession of an inamdar. These sections came into force on July 1, 1960. The position as on this date should, therefore, be considered. Consequently possession, which would entitle a person to claim the rights of an occupant, would be possession on July 1, 1960. The date of vesting has no bearing on this question. This is also clear from the fact that for the period from July 20, 1955, to July 1, 1960, the inamdar was made liable for payment of land revenue. He would not have been made so liable, if it was intended that the tenant in possession on the date of vesting July 20, 1955, should become the occupant. Possession as on July 1, 1960, should, therefore, be considered for deciding the question who was entitled to become an occupant under Sections 5 and 6.

20. The possession which would entitle a person to be recognised as an occupant must also be lawful possession. If, therefore, a person had unlawfully taken possession of a land, he could not claim occupancy rights unless the right to recover possession from him had become barred by limitation before July 1, 1960. In cases in which the land had been leased to a tenant, the sections specifically provide for occupancy rights being granted to the tenant, even though the constructive possession was with the inamdar. The possession, which will determine the question of occupancy rights as between an inamdar and his tenant must, therefore, be actual possession. If, therefore, the inamdar had obtained the actual possession of the land before July 1, 1960, or if a final order for possession had been made in his favour before this date, which entitled him to actual possession on or before July 1, 1960, then the inamdar would be entitled to the rights of an occupant.

21. The next question to be considered is about proceedings for possession which were pending on July 1, 1960. There is no provision in the Act, which saves pending proceedings. The answer to the question will, therefore, depend |upon who was entitled to actual possession on July 1, 1960. It has been urged that as in such cases the tenancy had been terminated before July 1, 1960, the person against whom the application had been made was no longer a tenant and that consequently he could not be recognised as an occupant. The word ''inamdar' in Sections 5 and 6 includes a person who had ceased to be an inamdar by reason of the inam having been abolished on July 20, 1955. The word 'tenant' in these sections must, therefore, also be held to include a person whose tenancy had been terminated and against whom an application for possession was pending. An inamdar like any other landholder acquires a right to apply for possession when the tenancy is terminated. Under Section 32 he cannot, however, take actual possession of the land except under an order of the Tehsildar. Until, therefore, an order for possession is made in favour of a landholder, he has no right to and cannot take actual possession of the land. He cannot be deemed to be in possession because he has terminated the tenancy or made an application for possession. Where, therefore, no order for possession had been made before July 1, 1960, then as the landholder was not entitled to actual possession on July 1, 1960, the tenant and not the landholder would become the occupant. Where, however, an order for possession had been made in favour of the landholder before July 1, 1960, but that order was the subject-matter of appeal or revision or other proceeding in a superior Court, then the final order made in that proceeding would determine the question of occupancy rights. If the order for possession made in favour of the landholder before July 1, 1960, is finally upheld, then he would be entitled to the rights of an occupant. If, on the other hand, the final order is in favour of the tenant, then he would, become an occupant under the above provisions.

22. Our reply to the first question is, therefore, in the affirmative. The reply to the second question is that the tenancy terminates on the date on which the landholder makes an application for possession of the land to the Tehsildar as provided in Sub-section (2) of Section 44 of the Act, The reply to the third question is that possession as on July 1, 1960, should be considered for deciding who is entitled to the rights of an occupant. The reply to the fourth question is that the inamdar would be entitled to the rights of an occupant if a final order for possession had been made in his favour before July 1, 1960. He would also be so entitled if an order for possession was made before July 1, 1960, and if such order is not set aside in appeal or revision or other proceeding by a superior Court. Where, however, no order for restoration of the possession to the landholder had been made before July 1, 1960, or if the order for possession was subsequently set aside, the tenant would become the occupant with effect from July 1, 1960.


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