SAKHARAM GANESH PUJARI (D) THR. HIS LRS versus HUSEN ABA BAHADUR (D} BY HIS LRS.& ANR.

[2017] II S.C.R. 229

SAKHARAl\:I GANESH PUJARJ (D) THR. HIS LRS

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v.

HUSEN ABA BAHADUR (D} BY HIS LRS.& ANR.

(Civil Appeal No. 882 of2009)

NOVEMBER 16. 2017

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[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]

Bombay Tenancy and Agricultural Act. 1948 - s.32P - Tribunal :v.power to resume and dispose of land not purchased by tenant - Held: s.32P confers power on the Tribunal to summarily C evict the tenant if the right to terminate the tenancy by landlord and right to p11rc/1ase by tenant has become ineffective - Jn the instant case, landlord failed to exercise his right to terminate the tenancy and tenant also failed to give notice for purchase within one year of retirement of landlord Ji'om armed forces - Since period within which the landlord and tenant could not exercise their rights had D expired, a proceeding under s.32P was initiated - The landlord having retired in 1959, Chapter lllAA which was introduced in 1964 had no application to the rights of the parties in this case - By the time Chapter Il!AA was introduced in 1964, the appellant's right to terminate the tenancy within one year, was not available to him because one year had passed ajler the one year made available to the landlord - The provisions of Chapter lllA were not made retrospective b; 1 any express provision or by 11ecessa1:v intendn1ents in the amendment - Thus, as the matter stood then, there was only power to terminate and hand over possession to the landlord and that had been valid/)' exercised by the Appropriate Authority under s.32P - High Court, therefore, fell into an error in app(ving VS. Charati case and thereupon proceeding to hold that Chapter IJJA is applicable in the different facts of the present case - Appropriate Authority under the Act is directed to proceed with the action under s.32P of the Act.

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Rajakka v. S.M Shinde Spl. C.A. No.2593170 decided by Bombay High Court on 3.3.74; V. S. Charati v. Hussein Nhanu Jamadar (Dead) by Lrs. f 1998] 3 Suppl. SCR 30: (1999) l SCC 273 - referred to.

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Case Law Reference

119981 3 Suppl. SCR 30

referred to

Para 14

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 882 of

2009.

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From the Judgment and Order dated 20.08.2002 of the High Court

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of Judicature at Bombay in Writ Petition No. 4794 of 1988.

Makra11d D. Adkar, Braj K. Mishra, Vijay Kumar, Vishwajit Singh,

Ad vs. for the Appellant.

Pravin Satalc (For Raj iv Shankar Dvivcdi), Balraj Dewan, Advs.

for the Respondents.

The following Orderofthe Court was delivered:

ORDf:R

I. We have heard the learned counsel for the appellants and respondent No. 2. Though, several opportunities granted earlier, none has appeared on behalf of respondent nos. I (a) to I(!).

2. We have perused the appeal and relevant material.

3. This is a landlord's appeal against the judgment of the Bombay High Court' holding that the tenants' right to purchase the land wider Section 320 of the Bombay Tenancy and Agricultural Act, 1948 (hereinafter referred to as 'the Act') is still in existence and the proceedings can go on.

4. The High Cou1t rejected the contention of the landlord that in the absence of the exercise of the right to terminate the tenancy by the landlord. and the right to purchase the land by the tenant within two years from the date of retirement of the landlord from the armed services, the rights got extinguished.

5. The land in question is a little above IO acres and located in Kolhapur District. The landlord (now deceased) served in the Armed Forces from 13.12.1955 till his retirement on I 0.12.1959. On 01.04.1957, the tillers' day, the land was in possession of the respondent (now deceased) as tenant.

1 Datl!d 20.08.2002

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SAKHARAM GANESH PUJARI (D) THR. HIS LRS v. HUSEN ABA BAHADUR (D) BY HIS LRS.& ANR.

6. Because the landlord was serving in the army, the proceedings under Section 32P of the Act which empowered the tribunal to resume and dispose ofland not purchased by tenant were postponed.

7. The right of the tenant to purchase the land upon non termination of the tenancy by the landlord conferred by Section 32 F of the Act cai:i be exercised if notice is given by the tenant within one year from the date ofrctirement of the landlord from the Armed Forces. The landlord herein failed to exercise his right to terminate the tenancy; however no such notice was given upto 09.12. l960 or upto 09.12.1961. Thus, at the end of the two years period. beginning from I 0.12.1959, both, the landlord and the tenant had failed to exercise their respective rights of terminating the tenancy and purchasing the land.

8. In 1964, an amendment was made to the Act by M.aharashtra Act No.39 mid Chapter !IIAA was added. This amendment was brought into effect from 20. l 0.1964. Whether this amendment was purported to take effect retrospectively has been decided in the negative by the Bombay High Court in Rajakka vs. S.M Shinde2. It was held that there is no provision in the Amending Act which gives such retrospective effect.

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9. Section 32P3 of the Act confers power on the Tribunal to summarily evict the tenant if the right to terminate the tenancy by the ' Spl. C.A. No.2593/70 doted 3.3.74

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3 Section 32P. Power of rrribunalJ tu resume and dispose of land not purchased

by Tenant

( 1) \Vhcrc the purchase of any land by tcn:int under section 32 beco1ncs ineffective under section 32G or 32M or where a tenant fails to exercise the right to purchase the lond held by him within the spec.ified period under section 32F, [32-0. 33-C or 43-ID], the [Tribunal] rnoy suo motu or on on opplicotion mode in this behalf[* • *] [and in cases other than those in \Vhich the purchase has become ineffective by reason of section 32G or 32M, after holding a formal inquiry] direct that the land shall be disposed of in the. manner provided in sub-section (2). (2) Such direction shall provide- (•)that[•••] the [former tenant] be summarily evicted:

(b) thot the lond shall, subject to the provisions of section 15, be surrendered to the [former landlord];

( c) that if the entire land or any portion thereof cannot be surrendered in accordance \Vi th the provisions of section 15, the entire land or such portion thereof. as the case moy be, notwithstanding that it is a fragment, sholl be disposed of by sale to any person in the following order of priority (hereinafter called "the priority list"):-

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landlord and the right to purchase by the tenant has become ineffccti ve. Since the period withm which the landlord and the tenant could have exercised their rights had expired, a proceeding under Section 32P was initiated. The Tehsildar held that as no notice was given, the purchase was ineffective.

(i) a co~opcrat1ve fanning society the men1bers of\vhich are agricultural labourers, landless perso1ls or small holders or a con1bination of such persons;

(ii) agricultural labourers;

(iii) landless persons;

(iv) small hold..-s;

(v) a co-operative farming society of agriculturists (other than small holders) who hold either as owner or tenant or partly as O\Vncr and partly as tenant, land less in area than an economic holding and who are artisans:

(vi) an agriculturist (other than a small holder) \Vho holds either as O\vner or tenant or partly as O\vner and partly as tenant, land less in area than an econon1ic holding and \Vho is an artisans;

(vii) any other co-operative fanning society;

(viii) any agriculturist \vho holds either as owner or tenant or partly as O\Vner and partly as tenant land larger in area than an economic holding but less in area than the ceiling area;

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(ix) any person, not being an agriculturist, who intends to take to the profession of agriculture:

[Provided that dte State (Jovcrnn1ent may. by notification in the Otlicial Gazette give in relation to such local areas as it may specify, such priority in the above order as it thinks fit to any class or persons who, by reason of the acquisition of their land for any development project approved for the purpose by the State Govcrnn1ent have been displaced, and require to be re-settled.]

(3) Where any land is to be surrendered in favour of the [former landlord], undersub section (2), the (former landlord] shall not be entitled to the possession thereof until any amount refundable to the [former tenant} is refttndcd to him or recovered from the [former landlord]; and until such refund or recovery is n1adc the (forn1cr tenant] shall continue to hold the land on the same tcnns on \Vhich it \Vas held by hi1n previously.

(4) Where any land or portion thereof cannot be surrendered in favour of the landlord and \Vhere such land or portion is offered for the sale under sub-section (2), but no person comes forward to purchase such land or po11ion, as the case may be. shall vest in the State Government and tht: [Tribunal] shall determine tht: price of such land or portion in accordance \Vi th the provisions of section 63A and the amount of the price so detcrn1ined shall, subject to the provisions of section 3 2Q, be paid to the O\Vncr thereof

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SAKHARAM GANESH PUJAIU (D) THR. HIS LRS v. HUSEN ABA BAHADUR (D) BY HIS LRS.& ANR.

I 0. In a challenge to the proceedings by the tenant, the Appellate Authority reversed the order of the Tehsildar in favour of the tenant and held that the tenant could purchase the land. The landlord preferred a revision petition in which the Maharashtra Revenue Tribunal reversed the order of the Appellate Authority and agreed with the order of the Tehsildar holding the purchase to be ineffective.

11. Against the order of the Maharashtra Revenue Tribnnal, the tenant approached the High Court by way of a writ petition. The High Court set aside the order of the Tribunal and held that the provisions of Chapter IIIAA, which were introduced in 1964, were applicable to the proceedings in the present case and the tenant could exercise his right to the purchase the land. Under this Chapter if the landlord had failed to terminate the tenancy within two years of ceasing to be in the Armed Forces, the tenant could exercise his right to purchase the land within one year thereafter.

12. The High Court relied upon a judgment of this Court in V.S. Chorali vs. Hussein Nhanu Jamadar (Dead) by LRs.4 where this Couit has held that the landlord could invoke 43-lB introduced by Chapter IIIAA and terminate the tenancy of the tenant and the said Chapter IIIAA would apply only if the proceedings in favour of the tenant had not been completed.

13. It is significant to note that in the case of V.S. Charali (supra) the landlord had joined the Armed Forces in 1965 and had retired in 1972. In the present case, the landlord had retired in 1959. It is, therefore,

(5) Where any land is sold under sub-section (2), the [Tribunal] shall determine the price of the land in accordance \Vlth the provisions of section 63A and the price so determined shall be payable by a,1nual installments not exceeding six with simple interest at the rate of 4Yi percent per annum as the [Tribunal] may determine and the price of the land recovered from the purchaser shall, subject to the provisions of section 32Q, be paid to th1: O\vner thert:of.

[16) On the deposit of the last instalment of the purchase price, the Tribunal shall issue a certificate of purchase in the prescribed from to the purchaser in respect of the land. Such certificate shall be conclusive evidence of purchase. If the purchaser is at" any time in arrears of two installments, then unless the [Tribunal] after holding such inquiry as it thinks fit is satisfied with the reasons given and allows a further period not exceeding one year to pay the arrears. the purchase shall be ineffective and the amount deposited by such purchaser shall be refunded to him.]

• (1999) 1sec213

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clear that Chapter Il!AA which was introduced in l 964 had no application to the rights of the paities in this case. By the time Chapter IIIAA wa> introduced in 1964, the appellant's right to terminate the tenancy within one year, was not available to him because one year had passed after the one year made available to the landlord.

14. Chapter IIIAA introduced by the Amending Act, 1964, does not have any application in the present set of facts. The provisions of Chapter IIJA were not made retrospective by any express provision or by necessary intendments in the amendment [Sec paragraphs 24 to 26 of 'Shakti Tubes Ltd. vs. State of Bihar and Ors . . (2009)7 SCC 673 j. Thus. as the matter stood then, there was only power to terminate and hand over possession to the landlord and that had been validly exercised by the Appropriate Authority under Section 32P.

15. The High Court, therefore, fell into an error in applying the decision of this Court V.S. Charati (rnpra) and thereupon proceeding to hold that Chapter lllA is applicable in the different facts of the present case.

16. The appeal is allowed. The judgment and order of the High Comt is set aside. Appropriate Authority under the Act is directed to proceed with the action under Section 32P of the Act.

Devika Gujnd

Appeal allowed.