1. This petitioner under Article 227 of the Constitution of India raises a pure question of law in regard to the interpretation and construction of the provision of S. 8 of the Bombay inferior village Watans Abolition Act 1958 and S. 32G (6) of the Bombay Tenancy Act and Agricultural Lands Act. 1948.
2. Two Agricultural lands bearing Gal Nos. 71-A (S. No. 35) and 71-Bombay Tenancy Act (S. No. 34) admeasuring 18 acres and 39 gunths and 14 acres and 12 gunths respectively situated at village Bichukale, Taluka Koregaon, District Satara are the subject matter of the present proceeding. it is common ground that these lands were originally Ramoshi Watan land and governed by the provisions of the Bombay Inferior Watans Abolition Act 1958 (hereinafter referred to as the Watans Abolition Act ) both these lands were originally held by one Tatya Martand Ramoshi (Chavan) predecessor-in-title of the petitioner. Tatya died some time in the year 1970 leaving behind him the son- petitioner No. 1, widow-petitioner No. 2 and daughter petitioner No. 3 as his heirs and legal representatives. The respondent claim to be the tenants in respect of the said lands.
3. The present proceeding arise out of an order passed by the tenancy authority under S. 32-G (6) of the Bombay Tenancy Act Agricultural Land Act, 1948 (hereinafter referred to as the Bombay Tenancy Act ) Few more facts will be necessary to appreciate the point raised in this petitioner on behalf of the petitioner. The Watan under which the suit lands were held by Tatya was abolished under the Watans Abolition Act with effect from the appointed date i. e. 1-5-1959 on which dated the suit lands came to the bested in the Government. Under S. 32-G of the Bombay Tenancy Act the appointed date for the purposes of conferring the status of 'purchaser' was 1-4-1957. It is the case or the petitioner that the on the appointed date under the Watans Abolition Act none of the respondent were in possession of the suit lands. The land bearing Gat No. 71-A was cultivated by Tatya and his family with the help of Hanmant Bala on payment of wages. They further alleged that the name of respondent No. 1 appears in the Records of Rights of this land only for the year 1962-63 i. e. long after the appointed date. The other land bearing Gat No. 71-B was with Bapu Bhaiva Mang and its possession was given though Civil Court to Tatya in 1964. Thereafter by agreement dated December 9, 1964 Tatya gave it to respondent No. 2 or Vahivat. Thus, according to the petitioner, respondent No. 2 was not in possession of Gat No. 71-Bombay Tenancy Act on the appointed date.
4. It is also common ground that after the abolition of the said Watans Abolition Act the land came to be vested in the Government. On Jan. 30, 1968 all these lands were regranted to Tatya under S. 5 of the Watans Abolition Act . Accordingly mutation entry was also made a certified on March 10, 1968. The name of petitioner No. 1 was entered in the Recorded of Rights in respect of these suit lands manager of the joint family.
5. Krishnabai Yamaji Kadam respondent No. 4 to this petitioner, on Aug. 24, 1973 made an application to the tenancy authority under S. 23-G of the Bombay Tenancy Act for fixation of purchase of the suit lands. The application was opposed by the petitioner on several grounds contending that on the appointed date none of the respondent were tenants and therefore they are not entitled to purchase the lands under S. 32-G of the Bombay Tenancy Act. They further pleaded that S. 32-G. is not applicable. Application is false and the same be dismissed.
6. The Additional Tahsildar and A. L. T., Koregaon by his order dated March 1, 1974 held that the respondents were the tenants of the suit lands before the order the regard dated Jan. 30, 1958 and therefore they have become deemed purchasers under the provisions of S. 32-G (6) of the Bombay Tenancy Act. Against this order three appeals were filed to the Appellate Authority. On appeal was filed by the petitioner whereas the tenants filed two separate appeals challenging the purchase price. Two appeals were filed because there were two lands cultivated by two different tenants. The Sub-Divisional Officer, Koregaon Division Satara, by his judgment and order dated Sept 11. 1975 dismissed all the three appeals and confirmed the order passed by the Additional Tahsildar, Koregaon. Against this order, three revision application were filed to the Maharashtra Revenue Tribunal and the learned Member of the said Tribunal by his common judgment and order dated Nov. 19, 1975 dismissed all the revision application and confirmed the order passed by the two authorities below. It is against these orders passed by the authorities below that the petitioner have filed this petition to this Court under Art. 227 of the Constitution.
7. I am conscious of the fact that all the three authorities below have concurrently held that the provisions of S. 32-G(6) of the Bombay Tenancy Act are attracted in the present case and in view of the provisions the respondent have become deemed purchasers and accordingly fixed the purchase price. But, in my opinion, all the three authorities below have completely overlooked, misread and misinterpreted the provisions of S. 32-G (6) of the Bombay Tenancy Act,. The question of law that has been raised in this petitioner by Mr. N. B. Shah, learned Advocate appearing on behalf of the petitioner, is that having regard to the provisions of S. 8 of the Watans Abolition Act read with S. 32-G of the Bombay Tenancy Act. the provisions of sub-section (6) of the Bombay Tenancy Act will not come into operation at all. s. 8 of the Watans Abolition Act reds as under:--
'If any Watan land has been lawfully leased and such lease is subsisting on the appointed date, the provisions of the tenancy law shall apply to the said lease and the rights and liabilities of the holder of the such land, and his tenant or tenants, shall subject to the provisions of this Act, be governed by the provisions of the said law'.
It is common ground that the Watans were abolished on 1-5-1959 and the lands vested in the Government on the said dated,. It is also common ground that the suit lands were regarded in favour of Tatya under S. 5 of the Watans Abolition Act pursuant to regrant order dated Jan. 30, 1968. According to S. 8 of the Watans Abolition Act therefore, the possession of the respondent qua the suit land will have to be determined on the appointed date because S. 8 of the Watans Abolition Act contemplated that any Watan land has been lawfully leased and if such lease was subsisting on the appointed date i. e. on 1-5-1959, the provisions of tenancy law shall apply to the said lease and the rights and liabilities of the holder of such land and his tenant or tenants shall, subject to the provision of the said Act, be governed by the provisions of the said law. All the three authorities below have completely overlooked the provisions of S. 8 of the Watans Abolition Act and have also failed to determined as to whether the suit lands were lawfully leased to the respondent and whether such lease was subsisting on the appointed dated i. e. 1-5-1959. All the three authorities below have come to the conclusion that since the respondent were tenants on the suit lands prior to the order of regrant they have become deemed purchasers under the provisions of S. 32-G (6) of the Bombay Tenancy Act. In my opinion, this view is totally contrary to the provisions of S. 8 and S. 32-G (6) of the Bombay Tenancy Act.
8. Coming to the application under S. 32-G (6) of the Bombay Tenancy Act it would Bombay Tenancy Act necessary to refer to the material provisions which have been relied upon by the authorities below for conferring the status of statutory purchasers on the respondent. The relevant portion of S. 32-G (6) of the Bombay Tenancy Act reads as under:--
'32-G (6). If any land which, by or under the provisions of any of Land Tenures Abolition Acts referred to in Schedule III to this Act, is regrant to the holder thereof on condition that if was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under. this section, as if the condition that it was not transferable was not the condition of regrant'. Now, if one looks at Schedule III of the Bombay Tenancy Act, it is clear that the Watans Abolition Act 1958 is not mentioned in this Schedule III. in my opinion, takes away the application of the provision of S. 32-G (6) would come into operation in respect of such tenures which are abolished and referred to in Schedule III of the Bombay Tenancy Act. Since Watans Abolition Act, 1958 is not referred to in this Schedule III, the provisions of S. 32-G (6) will have no application to the present proceedings. Moment it is held that the provisions of s. 32-G (6) of the Bombay Tenancy Act are not attracted in the present case. the order passed by the authorities below relying upon the said provisions must be quashed and set aside being bad and illegal.
9. Mr. Dilip B. Bhosale, learned Advocate appearing on behalf of the respondent could not point out to me any amendment to Schedule III of the Bombay Tenancy Act by virtue of which the provisions of Watans Abolition Act were included in the said Schedule. As stated earlier, all the three authorities below have considered the claim of the respondent as deemed purchased on the basis that they were cultivating the suit lands as lessees prior to the order of regrant and without referring to the material fact as to whether these respondent were lawfully cultivating the suit lands as lessees on the appointed date as required under S. 8 of the Watans Abolition Act. since none of the authorities below have considered this aspect while disposing of the application of the respondent under S. 32-G of the Bombay Tenancy Act, in my opinion, the matter will have to be remanded back to the Additional Tahsildar and, A.L.T. Koregaon, to consider afresh the claim of the respondent bearing in mind the provisions of S. 8 of the Watans Abolition Act, if the respondent established that the suit lands were lawfully leased to them and such lease subsisting on the appointed date i. e. 1-5-1959 then the provisions of the Bombay Tenancy Act including the provisions of s. 32-G (6) will come into operation. After ascertaining this factual aspect the Additional Tahsildar and A. L.T. shall pass the order in accordance with law. Thus, the order passed by three authorities below are quashed and set aside and the matter is remitted back to the Additional Tahsildar and A.L T., Koregaon, to disposed of the same afresh in the light of the observations made hereinabove. The Additional Tahsildar shall give opportunity to both the parties to the lead such evidence as they deem proper to prove their rival contentions. The Additional Tahsildar shall dispose of the matter of expeditiously as possible since this matter is of 1964.
In the result rules is made partly absolute. Having regard to the facts and circumstance, of the case and the question of law involved in the present case, there shall be no order as to costs.
10. Order accordingly.