1. This is an application, in revision, from the order of the Additional Collector, Aurangabad, dismissing the appeal filed by the petitioner. Narayan Laxman, the petitioner, was the owner of Survey No. 821 situate at Shevar. One Keshav Bhimji, respondent No. 1 (hereinafter referred to as the respondent) was the tenant in respect of the said land. A provisional declaration was made under Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act (hereinafter referred to as the Act) in favour of the respondent. Thereafter, the petitioner made an applicaion to the Tahsildar contending that his holding is less than the extent of two family holdings. He suggested that Survey Nos. 834 and 1102/3 together measuring 61 acres 3 gunthas belonged to his deceased brother, Trimbak, and after the death of the latter, those lands were inherited by his widow, Dwarkabai. It appears that the respondent had made an application before the Tahsildar stating that he was not prepared to purchase the Survey No. 821. The Tahsildar held that the petitioner's holding is more than the extent of two family holdings. At the same time, he held that inasmuch as the respondent was not prepared to purchase the land bearing Survey No. 821, it should revert to the Government. From that decision, the petitioner went in appeal before the Collector, During the pendency of the appeal, it appears that the respondent put in an application before the Collector stating that he had been deceived by the petitioner into making the application before the Tahsildar to the effect that he was not prepared to purchase the suit land. He stated that he was prepared to purchase the same at the price fixed by the Government. This application was ignored by the Collector and the latter upheld the decision of the Tahsildar. Therefore, the petitioner has come up in revision to this Court. He has impleaded the protected tenant as also the Government of Bombay as respondents to this petition. Mr. Kanade has appeared for the respondent-tenant and Mr. V- T. Gambhirwala has represented the State.
2. Mr. Vaishnav, for the petitioner, attacked the orders of the lower Courts on two grounds. Firstly, he contended that there has been no proper investigation into the extent of the holding of the petitioner; that Survey Nos. 834 and 1102/3 should have been excluded in computing the extent of his holding and that if these lands were excluded, then the extent of his holding would be less than two family holdings. Secondly, he contended that there is no provision in the Act which empowers the Collector to pass an order for reversion of the land in favour of the Government, when the protected tenant refused to purchase the same. Mr. Kanade supports Mr. Vaishnav so far as the second point is concerned. He contended that the mere refusal on the part of the protected tenant, does not amount to surrender or relinquishment of his tenancy rights and that there is no provision in the Act under which the land could go to the Government. Mr. Gambhirwala was unable to show any provision in the Act, under which the Collector can declare that the land, which the protected tenant has refused to purchase, reverts to the Government.
3. Assuming that there was a refusal on the part of the protected tenant to purchase the land, it is impossible to hold that such a refusal amounts, in law, to surrender or relinquishment of his tenancy rights. I was told that there is a provision in the Hyderabad Land Revenue Act, under which the occupant of a land can relinquish his occupancy by giving a Rajinama and thereafter, the land can be regranted by way of Kabulayat. But, the question of relinquishment would arise only after the tenant became the full owner of the land. In the present case, the respondent has not yet become the full owner of the suit land and there is only a provisional declaration in his favour. Apart from this, it is quite clear that a refusal on his part to purchase the land does not amount to surrendering or relinquishing the holding within the meaning of those expressions in the Hyderabad Tenancy Act.
4. There is no provision in the Act, under which the land would automatically revert to the Government, in case a protected tenant has refused to purchase the same. In this connection, we may refer to the provisions of Sections 19A, 53-C and 53-G of the Act. Sub-section (7) of Section 19A provides for the extent of the land, which a landholder can retain from out of the land surrendered by the tenant. The last part of Sub-section (2) lays down that 'the Tahsildar shall declare any land surrendered which the landholder is not entitled to retain under the provisions aforesaid, to be surplus land'. As stated above, this is not a case of a land, which has been surrendered by a protected tenant in favour of the landholder. Section 19A, therefore, obviously does not apply to the present case. Then comes Section 53-C- of the Act. It empowers the Government to declare its intention to assume management of an agricultural land for a public purpose. Section 53-G empowers the Government to compulsorily acquire a land, the management of which has been assumed under Section 53-C of the Act subject to the payment of the reasonable price by way of compensation. It is, therefore, clear that Sections 53-C and 53-G of the Act are inapplicable to the present case. in this connection, it will be interesting to refer to the provisions of Sections 32E and 32P of the Bombay Tenancy and Agricultural Lands Act. Section 32E confers express power upon the Government for disposing of land, which remains in balance after purchase by the tenant under Section 32 of the Bombay Act. The mode of disposal of such lands is laid down in Sections 15 and 32P of the Act. It is not necessary for me to consider the provisions of these sections in detail. It is sufficient to note that the Bombay Tenancy Act confers express powers upon the Government for forfeiting agricultural lands under certain circumstances and disposing them of in the manner prescribed therein. There are no similar powers provided in the Hyderabad Tenancy Act. It must, therefore, be held that the Government have no powers of treating a land as surplus land and taking over the same for management or for the purpose of disposal under the Hyderabad Act.
5. Further, it was wrong on the part of the Collector not to have taken any notice of the application that was made by the respondent wherein he complained that he was prevailed upon by the petitioner to make an application refusing to purchase the land. The respondent is an ignorant and illiterate person and the Collector should, therefore, have applied his mind closely to the question as to whether the respondent had willingly stated before the Tahsildar that he was not prepared to purchase the suit land. The Tahsildar himself has observed that the respondent is a landless tenant. It is difficult to imagine that a person who has no land would refuse to purchase a valuable land, which would come to him, more or less, as a windfall or a God-sent gift.
6. Apart from the above, it is clear that the Courts below have failed to give effect to the provisions of law and, in particular, the provisions of Section 38-E of the Act. This section contains special provisions and over-rides the provisions of Section 38 in so far as the former provisions are made applicable. Section 38 of the Act contemplates a regular sale by the landholder in favour of the tenant, beginning with an offer being made by the tenant in regard to the price, fixing the price and the mode of its payment under the procedure laid down and culminating in the passing of sale-deed etc. Section 38-E expressly lays down that 'Notwithstanding anything in this chapter (Ch. IV) or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary....' That means, where Section 38-E applies, Section 38 will have no application except so far as it is laid down in Sub-section (7) of Section 38. At the same time, it is clear that there is no conflict between the provisions of Sections 38 and 38-E of the Act. Section 38-E applies when the Government issues a notification that the same may be applicable in respect of a particular area. Section 38-E provides for a statutory transfer of ownership and it does not contemplate the execution of a sale-deed by the vendor in favour of the vendee. A protected tenant becomes the owner of the land by virtue of the provisions of Section 38-E of the Act, when all the conditions laid down in that section have been fulfilled notwithstanding that a regular sale-deed has not been passed. There is nothing to suggest in the wording of Section 38-E of the Act that it allows a sort of option to the tenant. The scheme of Section 38-E of the Act is broadly as follows: A provisional declaration is made in favour of the protected tenant declaring that he is the owner of the land. Objections are invited from the landholder. After hearing the objections, if the appropriate authorities come to the conclusion that the landholder cannot be allowed to retain the land, then a reasonable price for the land is to be fixed. Sub-section (3) of Section 38-E of the Act lays down that an application should be made by the landholder within 90 days from the date of declaration, for fixing a reasonable price. There is no corresponding obligation laid on the tenant. If the landholder fails to make an application within the prescribed time, then the Tribunal must fix the price on its own motion. The first proviso to Sub-section (3) lays down that if a protected tenant commits default in payment of any instalment, the same can be recovered by the Government as arrears of land revenue and paid to the landholder. The second proviso to the same Sub-section, however, lays down that
If the whole or any part of the price due to the landholder cannot be recovered as arrears of land revenue, the transfer shall not be effective and the amount, if any, already paid by the protected tenant towards the price shall be refunded to him together with interest....
In the present case, the stage of fixing the price has not yet arrived, because the landholder has intervened and put in his objections. It is at this stage that the tenant is supposed to have stated before the Tahsildar that he was not prepared to purchase the land. Even so, the only logical course open to the Tahsildar and the Collector was to direct the Tribunal to fix a reasonble price, because both of them came to the conclusion that the petitioner was not entitled to retain the suit land. Once the price is fixed and is made payable by instalment, then the instalment can be recovered as arrears of land revenue, in case the tenant does not pay the same, and made over to the landholder. There is, therefore, no room for an argument that the choice lies with the protected tenant either to purchase the land or reject the same. Mr. Vaishnav relied, in particular, on the second proviso to Sub-section (3) of Section 38-E of the Act and contended that there is no complete transfer till the entire price of the land has been satisfied. No doubt, the wording of the second proviso seems to lend support to Mr. Vaishnav's argument. But, that contingency has not yet occurred in this case. In case the protected tenant proves to be recalcitrant and refuse to pay the price and if no recoveries are made even by issuing a coercive process under the Land Revenue Act, then certainly, the contingency contemplated by the second proviso would materialise and the transfer would become ineffective;
7. In my view, the Courts below were wrong in treating the refusal of the respondent as amounting to relinqushment or surrender and then holding that the land would automatically revert to the Government. In my opinion, the provisional declaration must beqome final as soon as the conditions laid down in Section 38-E of the Act are fufilled, in which case, the next step must be taken and that is regarding the fixation of price.
8. His Lordship, after dealing with a point not material to the report, proceeded.
9. The last point that was urged by Mr. Vaishnav is that no revision application has been filed by the respondent and that he cannot be allowed to take advantage of the revision application filed by the petitioner. There is not much substance in this argument. The petitioner has brought this application challenging the legality of the orders passed by the Courts below. According to the petitioner, the orders under which the land has been directed to be reverted to the Government are wrong and improper. Now, if those orders go, then the question arises as to what should be done regarding the disputed, land. That question will have to be decided by this Court whether there is a revision application by the respondent or not. In my view, the respondent has become the owner of the disputed land. That being the case, it is necessary for the Tribunal to proceed to take further steps commencing with the fixation of the price.
10. In the result, I set aside the orders of the Courts below and confirm the provisional declaration made in favour of the respondent and direct that the Tribunal should proceed to take further steps as provided in Sub-section (3) of Section 38-B of the Act. In case the Government have already taken possession of the suit land, they should restore the possession of the same to respondent No. 1. No order as to costs.