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Radhikabai and anr. Vs. Janba - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 752 of 1975
Judge
Reported inAIR1986Bom48; 1985(2)BomCR708; 1985MhLJ664
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 41 to 49 and 50
AppellantRadhikabai and anr.
RespondentJanba
Appellant AdvocateR.N. Deshpande,;S.R. Deshpande and;R.L. Khapre, Advs.
Respondent AdvocateC.S. Dhabe, Adv.
Excerpt:
.....place and merely because the tenant continues in possession after he has failed to exercise his right of purchase within one year from the commencement of tenancy the landlord cannot be deemed to have granted a fresh lease for the next year. 43(14-a) follow irrespective of inaction 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. 36, 50 and 43(14-a) of the tenancy act, observed that where there is a deemed surrender because of the failure on the part of the tenant to exercise his right to purchase within one year from the commencement of the tenancy or the restoration of the land, obviously the right to obtain possession will accrue on such failure. 50 and 43(14-a), the right to obtain possession..........provides that if a tenant fails to exercise his right of purchase under s.41 in respect of any land of purchase of any land becomes ineffective, the land shall be deemed to have been surrendered to the landlord, and thereupon the provisions of sub-secs. (1) and (2) of s.21 and chapter vii shall apply to such land as if the land was surrendered by the tenant under s.20. under s.49a ownership of certain lands stands transferred to the tenants on and from 1st april, 1963.5. section 41(1) thus confers a right to purchase land on a tenant in respect of the tenancies created prior to 1-4-1963 while s.50 creates an entitlement in the tenant whose tenancy commences after 1-4-1963, to purchase the land and provides a period for one year from the commencement of the tenancy to exercise that.....
Judgment:

Deshpande, J.

1. The question referred for decision by the Division Bench in this case is whether in a case covered by S.50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Tenancy Act for short), the provisions of S.41(2) thereof would apply so as to postpone the entitlement of a tenant to purchase the landlord's interest till he ceases to be a person under disability.

2. The petitioners who are widows of one Laxmanrao Wanjari, applied to the Tahsildar, areon Jan., 16, 1967 for a declaration that the opponent was not a tenant of the land survey Nos. 1/1,2 acres 28 gunthas and 3/1 A, 6 acres 39 gunthas of Hirapur and his possession of the lands was illegal and alternatively if it was found that he was a tenant, then for possession under S.50 of the Tenancy Act for possession as the tenant has exercised his right of purchase within one year from the commencement of the tenancy. The respondent opposed that application on the ground that he was a tenant and urged that in any event S.41(2) of the Tenant Act applied as the landholders were widows and his right to purchase the lands would be postponed for two years until their interest in the lands ceased to exist. The Naib Tahsildar rejected the application in view of his finding that the respondent was a tenant of the disputed lands even from 1959-60 onwards. The appellate authority held that the respondents was not a tenant from 1959-60 to 1963-64 and as the tenancy was created after 1-4-1963 and the tenant had not made any offer within one year for the purchase of the land, he was deemed to have surrendered the right to retain possession of the land under S.43(14 A) of the Tenancy Act and the landladies were entitled to retain the possession of the whole of the lands in view of S.21 of the Tenancy Act. He, therefore, set aside the order of the trial Court. In revision the Maharashtra Revenue Tribunal while affirming the finding that the respondent was not a tenant from 1959-60 to 1963-64, granted the relief of declaration and consequential possession. It however, held that the landladies would have no case against the tenant under S.43(14A) of the Tenancy Act as they are widows and the time limit provided by S. 41(2) of the Tenancy Act had not expired. This Court in Special Civil Application No.306 (sic) of 1969 decided on Feb.,2,1970 set aside the orders of the Courts below and remanded the case to the Naib Tahsildar with a direction that the Patwaris should be examined. After remand the trial Court held that the respondent was a tenant not since 1959-60 but only from 1964-65 and rejected the application on the ground that the landladies being widows the respondent was not entitled to purchase the land till after the expiry of two years from the date on which the widows' interest ceased. In appeal, the Sub-Divisional Officer, set aside this order after recording a finding that the respondent had never been a tenant and directed the petitioners to seek remedy in a competent Court for restoration of possession. The Maharashtra Revenue Tribunal in revision against this order held that the relief of declaration under S. 100(2) of the Tenancy Act, was barred by limitation as the application had not been made within six months from the accrual of the cause of action on or about 1-4-1965 and as the application had been made on 16-1-1967, it was barred by time as the provisions of the Mamlatdars Courts Act applied. It was further held that the respondent has no right to purchase as both the landladies were widows and the question of extension of time and of deemed surrender did not arise for consideration. Thus the order of the trial Court came to be restored.

3. On behalf of the land-ladies three contentions were raised before the learned single Judge, namely, (1) the period of limitation of six months under S.100(2) of the Tenancy Act was not applicable to the application filed by the land-ladies, (2) the findings of the Courts below about the deemed tenancy were wrong, and (3) the Revenue Tribunal was wrong in holding that there was no deemed surrender in view of the fact that the land-ladies were widows. The learned Judge held that the claim for declaration that the respondent was not a tenant, was barred by limitation and the contentions about the finding regarding the deemed tenancy did not survive. He, therefore, proceeded on the assumption that the respondent was a tenant whose tenancy had been created after 1-4-1963.

4. On behalf of the petitioners reliance was placed on the observations in two rulings of this Court, one of a single Judge in Govinda v. Udhao : AIR1972Bom169 , and the other of a Division Bench in Vikram Yeshwanta v. Eknath Trimbak : AIR1978Bom71 and it was urged that S.50 of the Tenancy Act was a complete Code in itself and the provisions of S.41(2) did not apply to the tenancies to which S.50 applied. On the other hand reliance was placed on behalf of the respondent on the rulings of a learned single Judge of this Court in Ramakrishna v. Vithal 1980 MahLJ 477 where he took the view that even in a case under S.50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, S.41(2) will apply and if the landlord is a person under disability the entitlement to purchase the landlord's interest is postponed till he ceases to be person under diability, and the provisions of S.41(2) will be deemed to have been engrafted in S.50 as S.41 has been made applicable mutatis mutandis to provisions of S.50. It would be useful first to consider the statutory provisions. S.50 reads as follows:

'50.(1) Where a tenancy is restored under S.7, 10,21,52 or 128A 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-sec.(1) of S.49A, every tenant holding the land under such tenancy and cultivating it personally shall be entitled to purchas 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 Sec.41 and the provisions of Secs. 41 to 44 (both inclusive) shall mutatis mutandis apply to such purchase.'

Section 41 (1) and (2) so far as they are material are as follows:

'41. (1) Notwithstanding anything to the contrary in any law, usage or contract but subject to the provisions of Ss. 42 to 44 (both inclusive ) a tenant other than an occupancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally.

(2) Where the landlord is of the following category, namely:-

(a) a minor,

(b) a widow,

(c) ***********

(d) a person subject to any physical or mental disability,

Such tenant shall be entitled to purchase the landlord's interest under this section after the expiry of two years from the date on which -

(I) the landlord of category (a) attains majority,

(ii) ********

(iii) the landlord of category (d) ceases to be subject to such disability, and

(iv) the interest of the landlord of category (b) in the land ceases to exist............'

Section 42 prescribes the extent of land and the conditions under which the tenant may be entitled to purchase under Sec.41. Sec.43 requires the tenant to make an offer to the landlord stating the price at which he is prepared to purchase the property, mode of payment, etc. while S.44 has relevance to the determination of the encumbrances on the land and how the purchase price is to be applied towards satisfaction of the debts. Sub-sec. (14A) of S.43 provides that if a tenant fails to exercise his right of purchase under S.41 in respect of any land of purchase of any land becomes ineffective, the land shall be deemed to have been surrendered to the landlord, and thereupon the provisions of sub-secs. (1) and (2) of S.21 and Chapter VII shall apply to such land as if the land was surrendered by the tenant under S.20. Under S.49A ownership of certain lands stands transferred to the tenants on and from 1st April, 1963.

5. Section 41(1) thus confers a right to purchase land on a tenant in respect of the tenancies created prior to 1-4-1963 while S.50 creates an entitlement in the tenant whose tenancy commences after 1-4-1963, to purchase the land and provides a period for one year from the commencement of the tenancy to exercise that right. It is, therefore, clear that while these two sections entitle the tenant to purchase the land, they are independent provisions relating to different situations, one relating to tenancy created before 1-4-1963 and the other to the later tenancies. There is a clear limitation to the right created under S.41(1) as it is made subject to sub-sec. (2), Whether there is such a limitation one the right created under S.50 would depend on how the latter half of S. 50 is construed. However, it is beyond doubt that S.50 creates an entitlement in a tenant holding land under a tenancy created after 1-4-63 to purchase within one year the land, and places a restriction by references to S.41 on the extent of land to be purchased which would be equivalent to the land he would have been entitled to purchase under S.41. It then provides that provisions of Ss.41 to 44 (both inclusive) shall mutatis mutandis apply to such purchase. Cl. (c) in sub-sec.(2) of Sec.41 which referred to the Armed Forces was deleted by Maharashtra Act No.39 of 1964 by which Cl.(ii) which referred to the Armed Forces also came to be deleted. The portion 'Not being serving member of the Armed Forces' which originally appeared in S.50 was substituted by 'Not being a landlord within the meaning of Chapter III-A' by Maharashtra Act No.39 of 1964 which inserted Chapter III-A by way of special provision of determination of tenancy by landlords who are or have been serving members of the Armed Forces and for purchase of their lands by tenants. It is noteworthy that the other three categories namely, minor , widow,and person subject to any physical or mental disability which appear in sub-sec.(2) of S.41 were not excluded from the operation of S.50 while excluding the members of the Armed Forces expressly by an amendment. To appreciate how unqualified the right under S.50 is, it necessary to refer to the provisions of S.38 in Chapter III of the Tenancy Act which relates to termination of tenancy by landlords and special rights of tenants. Under S.38(1) the landlords may after giving notice to the tenant in writing before the 15th day of Feb., 1961 and making an application for possession under S.36 on or before 31st day of March 1961, terminate the tenancy of the tenant other than an occupancy tenant if he bona fide requires the land for cultivating personally. Under sub-sec. (2) of Sec. 38, if the landlord is a minor, a widow or a person under any physical or mental disability, the time within which to apply is extended by one year after he attains majority or ceases to be subject to such disability and in a case of a widow by the successor in title within one year from the date on which the widow's interest in the land ceases to exist. But these and similar provisions of Ss.39 and 39A do not apply to the leases created after 1-4-63 which are governed by S.50. Clearly, if no provisions were made for resuming possession by the aforesaid three categories, by extending the time within which they could have applied for obtaining possession, it would not be correct to say that S.41(2) would apply to such cases and under that section the tenant was to be given an extended period for making an offer to purchase.

6. In this context it is necessary to compare the provisions of Chapter III-A which apply to Armed Forces, a category expressly excluded. Sec. 57B creates right in favour of the landlord to terminate the tenancy but sub-sec.(3) thereof provides that nothing in this Chapter shall apply to a tenancy of land created after obtaining possession thereof under the provisions of this Chapter by a landlord who has ceased to be a serving member of the armed forces; but the provisions of S.50 shall apply to such tenancy as they apply in relation to tenancy created after the date referred to in sub-sec.(1) of S.49A; or entitle a landlord who has ceased to be a serving member of the armed forces as a result of his being duly dismissed or discharged after a court martial or on account of bad character or as a result of desertion, etc. to terminate the tenancy under this section. Sec. 57D of Chapter III-A permits a tenant holding land from a landlord who is a serving member of the Armed Forces to purchase from him the land in certain circumstances. and sub-sec.(2) thereof provides a period of one year which is extended in cases where the provisions of sub-sec.(2) of Sec.57B apply. This would show that where protection was to be granted to a minor, a widow and a person under physical or mental disability, adequate provision was made in the Act and the fact that this was not done in respect of that category of landlords by S.50 expressly, would show the legislative intent that S.41(2) was not to apply to the tenancies covered by S.50.

7. Shri Dhabe the learned counsel for the respondent contended that by the last limb of S.50 the provisions of Secs.41 to 44 were made applicable mutatis mutandis to such purchases and this would mean that sub-sec.(2) of S.41 also applied. The Supreme Court while considering the meaning of the expression 'mutatis mutandis' in Ashok Service Centre v. State of Orissa : [1983]2SCR363 in Sec.3(2) of the Orissa Additional Sales Tax Act 1975, observed as follows (Para 17):

'Before considering what provisions of the principle Act should be read as part of the Act, we have to understand the meaning of the expression 'mutatis mutandis', Earl Jowitt's 'The Dictionary of English Law (1950)' defines 'mutatis mutandis' as 'with the necessary changes in points of detail'. Black's Law Dictionary (Revised 4th Edn.1968) defines 'mutatis mutandis' as 'with the necessary changes in point of detail, meaning that matters or things are generally the same, but to be altered when necessary , as to names, offices, and the like. Houseman v. Waterhouse 191 App Div 850, 182 NYS 249. In Bouvier's Law Dictionary (3rd Revision, Vol. II), the expression 'mutatis mutandis' is defined as 'The necessary changes, This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary , as to names, offices, and the like'. Extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act.'

It is thus clear that when a substantive right is conferred by S.50 of the Tenancy Act on the tenant to purchase within one year without any reservation, the provision for the application of the provisions of Ss.41 to 44 mutatis mutandis to such purchase cannot be read as having the effect of negating the rights conferred and reading restrictions on the right which were not expressly stated. The intention to extend the period of one year cannot be read by taking recourse to the use of the phrase mutatis mutandis as doing so would in effect repeal the provisions requiring the exercise of the right within a limited period. It is apparent that if the operation of S.50 were intended to be excluded in the case of disabled landlords the exclusion would have been by an express provision. Applying the test laid down by the Supreme Court, the mutatis mutandis clause would bring in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the tings changed, subject of course to the express provisions made in the later Act. We are clear that reading the limitations which sub-sec. (2) puts on the entitlement to the right under sub-sec. (1) of S. 41, also in S.50 would amount to altering the essential nature of the right conferred by S.50 and reading into it the exclusion which was not intended and an extension of time which is entirely unwarranted.

8. In view of the clear statutory provisions which we have indicated, we find that the right conferred by S.50 is not subject to the provisions of S.41(2).

9. We may now refer to the decided cases. In Govinda v. Udhao : AIR1972Bom169 , Chandurkar J. as he then was observed :

'under S.50 of the Bombay Tenancy and Agricultural Lands Act, 1958, the tenant is entitled to purchase only so much land as he may be entitled to purchase under S.41. Section 41 deals with the right of a tenant to purchase land and this right of a tenant to purchase land and this right is subject to the provisions of S.42 which sets out the extent of the land which the tenant may purchase under S.41. The restrictions in S.42 are imported by reference to Sec.41 into S.50 of the Act. Sec.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. Sec.50 is thus a self-contained provision dealing with the kinds of tenancies referred to therein, namely, tenancies created after 1-4-1963 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 S.50 must be exercised i.e. within one year from the commencement of the tenancy. ...............A surrender fictionally takes place and merely because the tenant continues in possession after he has failed to exercise his right of purchase within one year from the commencement of tenancy the landlord cannot be deemed to have granted a fresh lease for the next year. The consequences in S.43(14-A) follow irrespective of inaction 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.'

In Vikram Yeshwanta V. Eknath Trimbak : AIR1978Bom71 , the Division Bench of this Court while considering the provisions of Ss.36, 50 and 43(14-A) of the Tenancy Act, observed that where there is a deemed surrender because of the failure on the part of the tenant to exercise his right to purchase within one year from the commencement of the tenancy or the restoration of the land, obviously the right to obtain possession will accrue on such failure. On a proper reading of Ss.50 and 43(14-A), the right to obtain possession will be deemed to have been accrued to the landlord as soon as there is failure on the part of the tenant to purchase within one year as contemplated in S.50 and the period of two years under S.36(2) will start running from that date and not from the date of finding in the enquiry under S.21(1) and (2). While referring to the decision of the learned single Judge in Govinda v. Udhao : AIR1972Bom169 the Division Bench stated that they were in agreement with the view taken by the learned single judge in that decision, and it was not necessary to re-state the reasons of the said view. Shri Dhabe, however, urged that the question of applicability of sub-sec. (2) of Sec.41 deals with the right of a tenant to purchase land and this right is subject to the provisions of Sec.42, which sets out the extent of the land which the tenant may purchase under S.41 and the restrictions in Sec.42 are imported by reference to S.41 into Sec.50 of the Act. Thus the application of the provisions of Ss. 41 to 44 mutatis mutandis cannot have the effect of overriding the essential features of Sec.50. We were, however, referred to the observations of a learned single Judge in Ramkrishna v. Vithal 1980 MahLJ 477. After referring to Vikram v. Eknath : AIR1978Bom71 and Govinda v. Udhao : AIR1972Bom169 the learned Judge observed as follows:

' The distinguishing feature of this case is that here the starting point of limitation for conferral of right of compulsory purchase has not arisen at all in view of S.41(2) of the Act. The sole question is whether the provisions of S.41(2) regarding postponement of entitlement to purchase the landlord's interest till the time he ceases to be a person under disability applies to S.50 or not. The argument is that in such cases, S.41(2) will apply and these provisions will be deemed to have been engrafted in the provisions of Sec.50 of the Act as in terms, S.41 has been mutatis mutandis made applicable to the provisions of Sec.50. I think the argument on this point is extremely sound and has to be accepted.'

Relying on these observations Shri Dhabe argued that the provisions of Sec.41(2) must be regarded as having been engrafted in Sec.50 of the Act. That was a case where the landlord was a person subject to physical and mental disability and the learned Judge held that the right to purchase was postponed. In view of the observations of the Supreme Court in Ashok Service Centre v. State of Orissa : [1983]2SCR363 , to which we have referred, it would not be permissible for us to hold that in view of the provisions of Secs. 41 to 44 having been mutatis mutandis made applicable to the provisions of Sec.50, the provisions of Secs. 41 to 44 must be deemed to have been engrafted in Sec.50. As we have already pointed out,those provisions would have to be made applicable without altering the essential nature of the thing changed namely the right to purchase conferred by S.50 on a tenant to purchase the land within one year from the commencement of the tenancy. In our view the provisions of sub-sec.(2) of Sec.41 would not apply to a case covered by Sec.50 and the period of one year provided by S.50 for exercising the right to purchase will not be extended even if the landlord belonged to the three categories, namely a minor,a widow or a person subject to any physical or mental disability and we answer the reference accordingly.

10. Shri Dhabe submitted that in the even of our holding that S.41(2) does not apply to the right conferred by S.50, the matter will have to be sent back to the learned single Judge for passing appropriate orders. We do not consider that necessary in view of the clear finding recorded by the learned single Judge in his judgment that if his view that Ss.41 to 44 shall mutatis mutandis apply, and this clause does not make any provision about disabled landlords in S.41(2) applicable to the provisions of Sec.50, then the petition deserves to be allowed and the application filed by the land-ladies for possession of the land from the respondent also deserved to be allowed. We have pointed out that the alternative prayer of the applicants in the original applications filed on jan 16,1967 was also for possession of the whole of the land because they held only 27 acres of land and their holdings would not exceed three family holdings and S.21(1) entitled them to retain the whole of the land mentioned in the application. The learned single Judge has clearly recorded that this alternative prayer for possession would have to be granted if his view were to be accepted. Since we agree with the view of the learned single Judge who made the reference and, with respect, are unable to agree with the view of the learned Judge in Ramakrishna v. Vithal 1980 MahLJ 477, sending the matter back to the learned single Judge is entirely unnecessary.

11. Consistently with the view taken by us and the finding recorded by the learned single Judge, we would make the rule absolute and direct that possession of the lands in dispute shall be delivered to the petitioners. The petitioners would be entitled to their costs of this petition while the respondent will bear his own. Reference ordered accordingly.


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