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Nago Dattu Mahajan Vs. Smt. Yeshodabai Huna Mahajan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 283 of 1970
Judge
Reported in(1976)78BOMLR427
AppellantNago Dattu Mahajan
RespondentSmt. Yeshodabai Huna Mahajan
DispositionAppeal allowed
Excerpt:
.....31(7). he, secondly, contends that under no circumstances can section 32f (7)(a) apply, where the widow's tenant lays claim to ownership on final rejection of widow's application for resumption as the widow is not empowered to claim resumption under section 31(5) at all. it was considered that their failure to avail of this last opportunity would have resulted in their being permanently deprived of such a right and their tenants becoming owners automatically on april 1, 1957. a special provision was, therefore, made in section 31(3) to protect such disabled persons by extending the dates for making such applications for resumption, till one year after cessation of their disability. section 32f (1)(a) is designed precisely to meet this need and purpose. sections 31, 32 and 32f do reflect..........31(7). he, secondly, contends that under no circumstances can section 32f (7)(a) apply, where the widow's tenant lays claim to ownership on final rejection of widow's application for resumption as the widow is not empowered to claim resumption under section 31(5) at all. she can seek to resume land for personal cultivation only under section 31(1) by complying with section 31(2) and face the risk of the tenant becoming the statutory owner automatically under the first proviso to section 32(7)(b).6. this discussion necessitates our examining the scheme of sections 31, 32 and 32f. these sections were introduced in the act on august 1, 1956 under the amendment act 13 of 1956. section 32 contemplates automatic vesting of ownership in the tenants in pursuance of the legislative policy to.....
Judgment:

Deshpande, J.

1. The petitioner is the tenant of the lands in dispute, while respondent No. 1 is the owner thereof. Respondent No, 1 has been a widow since before the tillers' day on April 1, 1957. Her application for possession of the lands, for personal cultivation, under Section 31(7) read with Section 29 of the Bombay Tenancy and Agricultural Lands Act of 1948 (hereinafter referred to as 'the Act'), made before March 31, 1957, was rejected on December 26, 1958 and this order was finally confirmed by the Revenue Tribunal in revision on June 15, 1964.

2. The petitioner claimed to have become the statutory purchaser of the land on June 15, 1964 under Section 32(7)(I). The Agricultural Lands Tribunal accepted his claim and fixed the price of the land under Section 32G of the Act. This order was virtually confirmed in appeal with slight modifications. Respondent's revision to the Revenue Tribunal, however, was accepted. The Tribunal held that the claim was covered by &. 32F (7)(a) of the Act under which a tenant cannot claim automatic vesting of ownership, but he continues to be such tenant till widow dies and certain stages are completed thereafter. The Tribunal followed the judgment of Bal J. in the case of Havabibi A. Gulam Chafekar v. Shaikh Ebrahim Baba Tamlu. (1969) Special Civil Application No. 2707 of 1968, decided by Bal J., on February 5 of 1969, 1989 (Unrep.). The validity of this order is challenged in this Special Civil Application.

3. Now there is conflict of opinion as to whether the right to purchase of a tenant, of every landlord specified in Section 32F (7)(a) hereinafter referred to as 'disabled landlord' is regulated by this provision even if such landlord avails of his right of resumption under Section 31(7). Shah J. held that it does, following Bal J., while rejecting the tenant's claim to have become a purchaser automatically under Section 32(1 (b. In the case of Twngabhadrabai Deorao v. Nanasaheb Ganpatrao (1974) 78 Bom. L.R. 805 the tenant's contention as to the application of Section 32F (i)(a) was rejected under identical circumstances, Vaidya J., on the other hand toot a contrary view in the case of Sujataali v. Rupchand (1972) 75 Bom. L.R. 257. Hence this reference to the Division Bench. The question whether the tenant's claim to ownership, in this case, is governed by the first proviso to Section 32(1)(b) or Section 32F (1)(a) of the Act thus depends on the true construction of Section 32F (7)(a) of the Act as to its scope and ambit.

4. Section 32F (7) of the Act regulates the procedure for statutory purchase of lands held by those tenants who do not become such purchasers automatically under Section 32. Nows. 32F (7) consists of two Clauses (a) and (b). Clause (a) deals with the claims of tenants of the 'disabled' landlords, while Clause (&) deals with the claims of those tenants who are themselves 'disabled'. It is not disputed that a tenant would not become a statutory purchaser automatically on June 15, 1964, if his claim is covered by the provision of Section 32F (1)(a). The relevant portion of this provision reads as follows:

(1) Notwithstanding anything contained in the preceding sections-(a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimation to the tenant of the fact that he has attained majority, before the expiry of the period during which, such landlord is entitled to terminate the tenancy under Section 31.

5. First impression is as though his claim, and claims of tenants of every such disabled landlord are so covered. Apparently the clause includes every such landlord in its stride. In that case the tenant's claim to the statutory purchase of the land, available under Section 32, stands postponed till (1) the widow dies, (2) the successor-in-interest exhausts his right of resumption within one year of her death, and (3) he follows the prescribed procedure thereafter as in Sub-section (1A) thereof. Mr, Warke, the learned advocate for the petitioner, however, contends that Section 32F (7)(a) or (1A) has no application to such claim of the tenant, when widow seeks resumption before March 31, 1957. The contention of Mr. Warke is two-fold. He, firstly, contends that Section 32F (1)(a) has no application where any of the disabled landlords like a widow covered by Section 31(5), exhausts, her or his, right of resumption under Section 31(7). He, secondly, contends that under no circumstances can Section 32F (7)(a) apply, where the widow's tenant lays claim to ownership on final rejection of widow's application for resumption as the widow is not empowered to claim resumption under Section 31(5) at all. She can seek to resume land for personal cultivation only under Section 31(1) by complying with Section 31(2) and face the risk of the tenant becoming the statutory owner automatically under the first proviso to Section 32(7)(b).

6. This discussion necessitates our examining the scheme of Sections 31, 32 and 32F. These sections were introduced in the Act on August 1, 1956 under the Amendment Act 13 of 1956. Section 32 contemplates automatic vesting of ownership in the tenants in pursuance of the legislative policy to make the tillers of the lands its owners. Section 31, however, seeks to enable the landlords to resume the land if they need it borate fide for their personal cultivation. Section 31(1) confers such right on all the landlords. But Section 31(2) requires it to be exercised by terminating the tenancy before December 31, 1956 and making an application before March 31/1957. Under Section 32, tenants cultivating the lands are to be, deemed to have become owners thereof with effect from April 1, 1957, subject to certain provisions not relevant for the point under consideration. The dates so fixed indicate the legislative intent of affording one last opportunity to the landlords to resume lands before ownership gets vested in the tenants. The tenants become purchasers automatically under e. 32 subject to this right of resumption.... Cases of permanent, or excluded tenants covered by chap. IIA, or tenants disqualified due to their holdings, may be excluded from consideration, as being irrelevant here. Now tenants qualified to be such purchasers can be divided into three categories. Tenants against whom no proceedings for possession were instituted by their landlords before March 81, 1957 fall into one category. Such tenants are deemed to have become purchasers on April 1, 1957 itself under Section 32(1)(b)(i)(ii) and (iii). Those tenants against whom such applications were pending on April 1, 1957 under e. 29, on termination of tenancy for breach of some clause of Section 29, or for resumption for personal cultivation under Section 31, fall under another category. They are deemed to have become purchasers on the postponed dates under the first proviso of Section 32(7)(b), when such applications come to be finally rejected. Then come the tenants of lands belonging to a joint family on April, 1957 of which some members happen to be 'disabled' as specified under Section 31(3). Such tenants also become automatic purchasers on April 1, 1958, if such disabled landlords are not separated before March 31, 1958 in terms of the proviso to 9. 31(3).

7. The Legislature then also seems to have taken notice of the difficulties of some landlords who were minors, widows and others, subject to mental and physical disability, on April 1, 1957 and whose ability to claim land for personal cultivation was open to doubt. It was considered that their failure to avail of this last opportunity would have resulted in their being permanently deprived of such a right and their tenants becoming owners automatically on April 1, 1957. A special provision was, therefore, made in Section 31(3) to protect such disabled persons by extending the dates for making such applications for resumption, till one year after cessation of their disability. This Sub-section does not, however, enable the widow herself to claim resumption at any time, after April 1, 1957. The possibility of her remaining disabled throughout her life seems to have been statutorily assumed. The right to resume during this extended period is, therefore, conferred only on her successor-in-title. The benefit of this sub-section and of the extended period for resumption is also extended, under the proviso to this sub-section, even to such disabled persons who happened to be members of the joint family on April 1, 1957, provided they get separated before March 31, 1958 under the kind of partition specified therein.

8. This protection to such disabled landlords would have been illusory, had not their tenants also been prevented from becoming statutory purchasers automatically under Section 32. Such tenants would come under the first category against whom no application for possession was pending on April 1, 1957. It was necessary, therefore, as an integral part of this scheme, to postpone the dates of their purchase, till the disability of their landlords ceased, and a reasonable time is made available to them to exercise such a right. Section 32F (1)(a) is designed precisely to meet this need and purpose. The protection contemplated under Section 31(3) would not have become effective but for such, a provision. Section 32F (1)(b) is designed to meet the situation arising out of the somewhat identical disabilities of the tenants who may not be able to avail of the right of such purchase, on the tillers' day, because of these apprehended, inability either to cultivate the land personally, as required under Section 32(1)(b), or inability to pay the purchase price or to properly defend consequential proceedings.

9. Section 32F (1)(a) is thus closely connected with Section 31(3), being almost a corollary thereto or a counterpart thereof, A comparison of the bare wordings of these two sections would leave no manner of doubt as to how one is designed just to meet the situation arising from the other. Sections 31, 32 and 32F do reflect a well-knit scheme, each one being an integral part of the other. Such disabled landlords, however, are not excluded from the provisions of Section 31(7) either, by implication or any express provision and are not prevented from claiming resumption even before March 31, 1957. It is so held by a Division Bench in the case of Jiviben v. Bombay Rev. Tribunal : (1959)61BOMLR1475 in which such claims of widow and minors have been upheld. It is not difficult to conceive of situations where even 'disabled landlords' may find such resumption possible, or profitable or even indispensable, without waiting till March 31, 1957 in spite of the assumed disability. Section 31(3) is therefore held to be an enabling provision designed for the benefit of such disabled landlords.

10. Such landlords thus have a choice to avail of either of these two provisions for resumption, i.e. Section 31(7) or Section 31(3), exercise of which depending on the circumstances in which each of them finds himself. No landlord, however, can avail of both the provisions, Section 31 having been designed to afford only one' last opportunity of resumption. Any such landlord thus cannot seek resumption under Section 31(3) again if he or she has availed of the right under Section 31(7), Section 32F (7)(a) being merely corollary and counterpart of Section 31(3) its application also would depend on such landlord's choice and competency to avail, of the provisions of Section 31(J). Consequently its provision cannot be attracted when the right to resume under Section 31(7) is availed of and one such opportunity is exhausted by such disabled landlord. Section 32F (7)(a) cannot be attracted indiscriminately merely because tenant's landlord happens to be a disabled landlord, i.e. a minor, widow, etc., as specified in these two sections. Section 32F (7)(a) thus will not be attracted, when the widow or any other such disabled landlord seeks resumption under Section 31(7) before March 3.1, 1957, without regard to whether he or she fails or succeeds in the attempt. It will not apply even if such an application for resumption is rejected. Due to exhaustion of such right, the landlord cannot avail of Section 31(3) in spite of being a disabled landlord. Implication of Section 31(3) results in implication of Section 32F (1)(a) also. Like the tenants of every other landlord applying under b. 31(7), the tenant of such a landlord also would become an automatic purchaser of the lands on the date of final rejection of such application, as under the first proviso to Section 32(7)(6).

11. The wording of Section 32F (1)(a) also fortifies this view. This clause presupposes the continued existence of the title of the landlord to terminate the tenancy and resume land. It assumes that the period for a ailment of such claim has not expired, The contemplated postponement of the tenant's right of purchase under this clause is entirely based on the hypothesis that the landlord has not availed of such a right under Section 31(7) and the right to resume still subsists even after the notified tillers' day, i.e. April 1, 1957. The entitlement of such a landlord to claim resumption after April 1, 1957, is the sine qua non for the postponement of the statutory right of purchase of his tenant under this section. Where, as in the case before us, the widow or other disabled landlord contemplated under Section 31(3), avails herself or himself of the right of resumption by recourse to Section 31(7), she or he ceases to be so entitled to claim the resumption thereafter, without regard to whether such application results in resumption of the land or not. Her or his being thus entitled to claim resumption again after April 1, 1957, therefore, cannot even remotely be conceived. This itself prevents the application of- Section 32F (7)(a) and also the further postponement of the right to purchase contemplated thereunder and entitles the tenant to claim the benefit of the first proviso to Section 32(7)(6) and become a statutory purchaser on rejection of the application under Section 31(7).

12. Strong reliance was placed by Mr. Karandikar, learned advocate appearing for the respondent, on the non-obstinate clause with which Section 32F (7) opens. He contended that assuming any limits, on-the operation of this sub-section by reference to Section 31(3) is not warranted. This contention, no doubt, is rendered attractive by the inclusion of all the 'preceding sections' within 'its sweep, presumably out of abundant precaution. This very width of the sweep, however, is enough to expose the fallacy underlying the contention, as very few of sections out of 1 to 32E can be considered to be relevant. Such sweeping exclusion can hardly shed any light on the contents included. The true import of the non-obstante clause has to be ascertained only by examining the context in the light of its object. So considered, this non-obstante clause would be found to have been aimed only at nullifying the automatic purchase by tenants of the disabled landlords' lands under the proviso to Section 32(1)(b) where lands held by them are liable to be resumed by such landlords during the extended period as provided in Section 31(3).

13. Mr. Karandikar also strongly relied on the Full Bench decision of this Court in the case of Vishnu Shantaram v. Indira Anant. (1971) 78 Bom. L.R. 792, F.B. The validity of the claims of the tenants, in three cases under different sets of facts, to have become purchasers of the lands automatically, under Section 32(1)(a) was under consideration of the Full Bench. In the first and third cases, the lands were held on April 1, 1957 by a tenant, who was a widow, and a minor respectively, while their landlords were not of the disabled category. In the second case, the land was owned on April 1, 1957 by a widow, a disabled landlord, but the tenant was not so 'disabled'. Both the landlord and the tenant died thereafter. On the widow's death, her heir did not care to resume the land within time. Admittedly none of the tenants in these cases had followed the procedure prescribed under Section 32F (7A) to claim the statutory right of purchase. Their claim to have become statutory purchasers was disputed by their landlords on this very ground in all these three cases. Application of Section 32F (1) and (1A) to their claims was resisted by the tenants on three grounds, i.e. (1) that Clause (&) of Section 32F (7) cannot apply to any tenant merely because of their being a widow or a minor, i.e. disabled tenant on tillers' day, unless their landlord also happened to be so disabled, (2) that ownership rights conferred under Section 32 were independent of such a right under Section 32F (7) and failure to avail of the latter cannot result in defeating the rights under the former, (3) rights under Section 32F are in addition to the rights under Section 32 and tenants are left with a choice to avail either of the same. The Full Bench over-ruled these points. The Full Bench was not considering application of Section 32F (7) to the claim of a widow's tenant who had availed of the resumption right under Section 31(7). The passages here and there quoted by Mr. Karandikar or relied on by Shah J. from this judgment cannot be read in isolation. In fact, there is no passage in the judgment directly dealing with the point under consideration. The ratio of the Full Bench judgment, therefore, has no application here.

14. With respect, we find it difficult to agree with Shah J. or with Palekar J. or Bal J. whom the learned Judge has followed. There cannot be any quarrel with the propositions that (1) Rights under Section 32 are subject to the limitations under Section 32F or that (2) provisions of Section 32F have over-riding effect or that (3) Section 32F controls the provisions of Section 32 or that (4) Section 32F does not create rights independent of Section 32 or in addition to thereof, or that (5) claims covered by Section 32F (7) cannot be availed of without following the procedure thereunder. With respect, this is all besides the point. The question is not so much of the correctness of these propositions in their broadest forms, as of determining the ambit and the area of operation of Section 32F (7) of the Act. Each of these propositions would be correct, when applied to such areas of operation. In the cases of Kumari Shirish Vdhav Rajadhya v. Ram Tukaram Kirulkar (1960) Special Civil Application No. 1064 of 1069, decided by Palekar J., on August 22, 1960 (Unrep.) and Havdbibi A. Gulam Chafekar v. Shaikh Ebrahim Baba Tamlu decided by Palekar J. and Bal J. respectively, the true implication of Section 31C appears to have been missed. We say so with great respect to the learned Judges. Section 31C in terms puts an end to any further claim for resumption of the land left with the tenant on resumption of the half by the landlord. This disentitles any such landlord or his successor in title from claiming the right of resumption any further. This by itself was enough to make Section 32F (7) inapplicable, application of which, as shown earlier entirely depends, on the continuance of the entitlement of the disabled landlords to resume land. These indeed were clearer and stronger instances to demonstrate how Section 32F (7)(a) would cease to apply when once the right of resumption under Section 31(7) is exhausted and how its application cannot depend merely on the landlord's happening to be one of tlie disabled category. Vaidya J.'s observations on this point in SujmtaaU's case appear to us to be pertinent. 'With respect, we find ourselves in agreement therewith.

15. Mr. Karandikar also relied on Section 31D in support of his contention that continuance of tenancy is contemplated even after resumption of half the land under Section 31C? and assumption of tenant's becoming statutory purchaser automatically is unwarranted. Suffice it to observe that these provisions seem to have been made, by way of abundant precaution, to meet cases of tenants covered by Section 32F (7)(&) when tenants are prevented from being owners automatically on resumption- of the half of the land by the landlord.

16. Mr. Warke seems also to be on firm ground when he contends that widow can seek to resume land only under Section 31(7) and that too by application before March 31, 1957 as ordained under Section 31(2). As indicated earlier, Section 31(3) does not contemplate resumption by a widow but only by her successor-in-title. Reference to the 'widow' in Section 32F (7)(a) as also in Section 31(3) itself, is merely descriptive of the 'disabled' landlord whose disability is statutorily recognised. Indeed provision is made not so much for her benefit as for that of her successor. The words 'such lands' in Section 32F (1)(a) are referable, in the context, to her successor-in-title and not to widow herself. This is what Vaidya J. also has hinted in Sujataali's case. Section 32F (7)(a) thus does not apply to every tenant of the 'disabled' landlord. The occasion for its application does not arise unless such landlord's right of resumption is found to subsist. In the event of any such landlord exhausting his or her right of resumption under Section 31(7) before March 31, 1957, the question of his or her 'subsisting right' to resume the land under Section 31(3) cannot and does not arise and consequently Section 32F (1)(a) can have no application and then tenant's right to purchase is governed by Section 32(7)(b) and not by Section 32F (1)(a). It will be all the more so when the landlord happens to be a widow and she avails of-such right under Section 31(1). The petitioner tenant in this case must be deemed to have become the purchaser automatically on the final rejection of respondent's application under Section 31(1) on June 15, 1964.

17. The Special Civil application deserves to be allowed. The tenant-petitioner must be deemed to have become the purchaser of the land in dispute on the date when the widow's application for resumption of the land finally came to be rejected on June 15, 1964.

18. Rule is accordingly made absolute. Order of the Revenue Tribunal is set aside and that of the Appellate Authority restored. There will be no order as to costs.


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