Husen Aba Bahadur Deceased By His ... vs Sakharam Ganesh Pujari And Anr.
2002 Latest Caselaw 854 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This petition under Article 227 of the Constitution of India takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune, Camp at Kolhapur, dated August 2, 1988 in Revision Application No. MRT-KP- 119/84.

2. The petitioners herein are the successors in interest of the deceased Husen Aba Bahadur who was the tenant in respect of land bearing R. S. No. 60/2-A, situate at Aurwad, taluka Hatkanangale, dist, Kolhapur. The petitioners predecessor was inducted as a tenant in the suit lands prior to the tillers' day and was in possession thereof in that capacity. The suit lands were originally parts of joint family property of which original respondent No. 1 Sakharam Ganesh Pujari was a member. He was, at the relevant time, serving in the armed forces. It is the case of the respondents that he became the exclusive owner of the suit lands by virtue of a partition dated 29-11-1956 between his family members. It is relevant to note that deceased Sakharam retired from the armed forces on December 10,

1959. It is not in dispute that by Act 13 of 1956, persons who were serving members of the armed forces were treated as disabled landlords, and in such cases, by virtue of Section 32F, the right of tenant to purchase land on the tillers day stood postponed. It is also not in dispute that if that provision was to be made applicable, the deceased Sakharam who was disabled landlord could have exercised the right to resume the land by terminating the tenancy within one year of retiring from service which period ordinarily would have expired on December 10, 1960. However, the original respondent did not give such intimation or exercise that right. By virtue of Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Act"), the original petitioner-tenant within one year therefrom could have given an intimation to purchase the suit land and failing to give such an intimation would have resulted in the purchase becoming ineffective, entitling the authorities to take recourse to Section 32P for resumption of the land. In the present case, however, the tenant continued to occupy the suit lands and whereas proceedings under Section 32G of the Act were initiated on the assumption that the tenant had become deemed purchaser on the tillers day i.e. on April 1, 1957. The tenancy authorities further proceeded on the assumption that the tenant was not willing to purchase the land and, therefore, initiated proceedings under Section 32P of the Act. In that proceedings, the tenant appeared and made a statement that he had no notice of the earlier 32G proceedings. In other words, he resisted continuation of Section 32P proceedings against him. In the background of this objection, the Tahsildar, by an order dated August 11, 1965, dropped the said Section 32P proceedings and held that the provisions of Sections 32 to 32R were not applicable to the suit lands since the lands were owned by devasthan which is impleaded as respondent No. 2 in the present petition. What is relevant to mention at this stage is that before this order was passed by the Tahsildar, chapter III-AA came to be introduced on October 20, 1964 by Maharashtra Act No. 9 of 1964. By the same Act, serving members of the armed forces who were earlier included in Section 32F came to be deleted and a separate provision in respect of members of the armed forces for termination of tenancy in respect of lands owned by them and for purchase of their lands by tenants came to be introduced. The title of this chapter III-AA would fortify this position, which reads :--

"SPECIAL PROVISION FOR TERMINATION OF TENANCY BY LANDLORDS WHO ARE OR HAVE BEEN SERVING MEMBERS OF THE ARMED FORCES: AND FOR PURCHASE OF THEIR LANDS BY TENANTS."

3. Be that as it may, respondent No. 1-landlord being aggrieved by the order passed by the Tahsildar dropping Section 32P proceedings and also holding that the provisions of Sections 32 to 32R are not applicable to the suit lands as the lands were owned by the devasthan (respondent No. 2), preferred an appeal before the Sub-Divisional Officer, being Appeal No. 62 of 1968. The appellate authority, after considering the rival submissions, was of the view that the matter ought to be remanded to the first authority to examine; (i) whether the tenant had notice or not?; (ii) whether the landlord being a military personnel could get advantage of the amended provision (Chapter III-AA)?; and (iii) whether the entire income of the property was used for respondent No. 2 trust? Upon remand,

the Tahsildar, by his order dated April 15, 1969, found that proceedings under Section 32G(3) of the Act were necessary. The Tahsildar further found that special provisions applicable to the trust property will have no application to the suit lands as the entire income derived from the suit lands was not used for respondent No. 2 trust. The Tahsildar, therefore, held that the provisions of Sections 32 to 32R would be applicable to the suit lands. The Tahsildar, however, found that the original respondent was the landlord and being a military personnel, proceedings under Section 32G will have to be dropped. Against this decision, respondent No. 1 landlord went in appeal before the Sub-Divisional Officer, being Appeal No. 35 of 1970. The appellate authority by order dated October 23, 1971 once again remanded the matter to the first authority to examine : (i) whether the income from the suit lands was fully utilized for respondent No. 2 trust?: (ii) to make a further inquiry under Section 32G of the Act; and (iii) to consider the review application. At this stage, it is relevant to point out that the appellate authority has adverted to the fact that the petitioner-tenant had made grievance that he was not served with any notice relating to Section 32G proceedings which were concluded against him earlier and the fact that he had sought for review of the said proceedings. After remand, the Tahsildar by order dated April 2, 1975 found that since the respondent-landlord was a member of the armed forces, proceedings under Section 32G could not be proceeded with. Against this decision, the tenant preferred an appeal, being Appeal No. 254 of 1975 before the Sub-Divisional Officer. The appellate authority in turn found that Section 32G was available to the tenant and that proceedings ought to be examined and for which reason remanded the matter to the first authority to decide the same on merits. Against this decision, the respondent-landlord filed Revision before the Tribunal, being Revision No. 38/76. The Tribunal by order dated June 8, 1977 held that the tenant did not receive an intimation of the proceedings under Section 32G of the Act and, therefore, the said proceedings which ended against the tenant were inappropriate and would not bind the tenant. Consequently, the Tribunal remanded the case to decide Section 32G proceedings on merits. On remand, once again the issue as to whether the land was devasthan land was framed by the authority. Another question which was framed by the authority was whether the tenant was willing to purchase the suit land and to fix the purchase price thereof. On remand, the Tahsildar, by order dated May 31, 1978, held that the tenant was willing to purchase the suit land and, therefore, determined the purchase price in respect of the suit lands at Rs. 5,570/-. Against this decision, the respondent-landlord carried the matter in appeal, being Tenancy Appeal No. 3 of 1978. The appellate authority by order dated May, 28, 1979 held that the suit land was trust property and, therefore, further observed that the provisions of Sections 32 to 32R were inapplicable to the suit lands. As a consequence of this finding, the appellate authority was pleased to set aside the order passed by the Tahsildar determining the purchase price of the suit land. Both the tenant as well as the landlord carried the matter in revision before the Maharashtra Revenue Tribunal. By order dated November 12, 1980, the Tribunal allowed both the Revision Applications and set aside the orders passed by the lower authorities and remanded the case for consideration afresh by further directing the trust (respondent No. 2 herein) to be

made a party to the proceedings. As per the said remand order, the matter went back for a fresh inquiry before the Tahsildar and respondent No. 2 was impleaded as the opponent in the said proceedings. The Tahsildar after considering the material on record and rival submissions framed as many as six issues which read thus :

 "(i)    Whether the landlord proves that he is or has ceased to be serving
member of the armed forces?;  
 

 (ii)   Whether the landlord proves that the suit land is not a Deosthan
Inam land?;  
 

 (iii) Whether the deceased tenant becomes deemed purchaser on 1-4-
1957?;  
 

 (iv) Whether the deceased tenant and afterwards his heirs had the right
of purchaser of the suit land under the Tenancy Act?;  
 

 (v)   Whether the deceased tenant had given intimation to the landlord
and the A.L.T. Shirol within one year from the date when the
right of landlord to get possession had come to an end under
section 43-1B? 
 

 (vi) What is the purchase price and what instalments are to be given?"  
 

The Tahsildar answered the above questions by recording the findings that respondent No. 1- landlord proves that he was and has ceased to be a serving member of the armed forces. As a necessary consequence of this finding, it was held that the provisions of chapter III-AA of the Act would apply to the present proceedings. It was further held that the exemption under Section 88B of the Act does not apply to the present case since the income from the suit land was not being used for the purpose of respondent No. 2 trust. The Tahsildar further held that the deceased tenant did not become a deemed purchaser on April 1, 1957. This finding is on the assumption that the respondent-landlord being a member of the armed forces, the tillers date got postponed. The Tahsildar further held that the deceased-tenant and thereafter the heirs do not have the right of purchase the suit land under the provisions of the Act. The Tahsildar has held that the tenant had failed to give intimation to respondent No. 1 landlord and the Tribunal within one year from the date when the right of the landlord to get possession of the suit land had come to an end within the meaning of Section 43-1B of the Act. As a consequence of this finding, the Tahsildar has held that the purchase had become ineffective and the tenant was not entitled to purchase the suit land and, therefore, there was no question of fixing the purchase price in respect of the suit land. Accordingly, since the purchase of the suit land had become ineffective, the Tahsildar directed initiation of proceedings under Section 32P of the Act. The petitioners herein carried the matter in appeal before the Special Land Acquisition Officer No. 14, Kolhapur, under Section 74 of the Act. The appellate authority by his order dated February 27, 1984 held that the suit land was outside the purview of Section 88B of the Act as the income derived from the suit land was not fully utilised for respondent No. 2 trust. As a consequence of this finding, it is held that the provisions of Sections 31 and 32 to 32R would become applicable to the present case. The appellate authority further held that since the landlord failed to avail of the benefit conferred under Section 31 of the Act of

seeking possession of the suit land before December 10, 1960, the case was governed by the provisions of Section 32 or 32F of the Act. The appellate authority further held that the petitioner (deceased tenant) did not give intimation to the landlord or to the Tribunal of his desire to purchase the suit land within the prescribed period i.e. before December 10, 1961. The appellate authority further held that in the present case, however, the partition effected between the family members of the respondent No. 1 landlord was not in conformity with the requirements of the proviso to Section 32F(1)(a). Consequently, the matter will have to be decided as if Section 32 applied to the case on hand and the tenant has become deemed purchaser of the suit land on the tillers day i.e. 1-5-1957 under Section 32 of the Act. The appellate authority further observed that since chapter III-AA came into force with effect from October 20, 1964, and as it has only prospective application would not govern the fact situation of the present case where the rights between the parties got crystallised earlier on April 1, 1957. The appellate authority found that on that date, the relationship between the parties as landlord and tenant was snapped as the tenant became a deemed purchaser by operation of law. The appellate authority, accordingly, proceeded to fix the purchase price in respect of the suit land at Rs. 5950/- and directed the same to be paid in five instalments from June 1, 1984 to the holder of the trust. Being dissatisfied, respondent No. 1 landlord carried the matter in revision under Section 76 of the Act before the Maharashtra Revenue Tribunal. The Tribunal by the impugned judgment dated August 2, 1988 has allowed the Revision Application and set aside the order passed by the appellate authority. The Tribunal has affirmed the finding recorded by the Tahsildar, inter alia, that the deceased tenant had not given intimation of his desire to purchase the suit land within the prescribed period to respondent No. 1 landlord and the Tribunal and, therefore, the purchase had become ineffective for which proceedings under Section 32P of the Act will have to be initiated. The Tribunal further observed that respondent No. 1 landlord was a serving member of the armed forces between December 13, 1955 and December 10, 1959 when he was given discharge. The Tribunal has also held that from the material on record, in particular the deposition of the tenant, it would appear that the tenant had accepted respondent No. 1 as the landlord and that he was a serving member of the armed forces. In the circumstances, the Tribunal held that it was obligatory on the tenant to exercise right of purchase of the suit land by giving intimation to the landlord and the Tribunal and having failed to do so, the purchase has become ineffective and, therefore, proceedings under Section 32P were inevitable. It is against this decision that the present Writ Petition has been filed by the tenant under Article 227 of the Constitution of India.

4. According to Mr. Rege, learned counsel appearing for the petitioners, the Tribunal completely exceeded its authority under Section 76 of the Act by interfering with the finding of facts recorded by the appellate authority. He further submits that, in any case, having regard to the scheme of the provisions of the Act if applied to the facts on hand, it will have to be held that the petitioner-tenant is entitled to purchase the suit land and the opinion expressed by the Tribunal that the purchase has become ineffective is completely inapposite. According to him, the Tribunal has completely overlooked that the petitioner-

tenant has been resisting the proceedings initiated by the tenancy authority in this case and was, therefore, asserting his right to purchase the suit land right from the inception. He contends that since the tenant was in possession of the suit land much before the tillers day and having participated and pursued the legal proceedings all throughout, it will have to be assumed that the tenant was always ready and willing to purchase the suit land and in such a case, it will be preposterous to conclude that the purchase has become ineffective due to failure on the part of the tenant to give intimation to the landlord and the Tribunal. In support of this contention, reliance has been placed on the decision of this Court is Shrikrishna Subhana Horambale and Ors. v. Shripad Jiwaji Apate (deceased by L.R.S.) and Ors., . He submits that having regard to the admitted position on record, it can be safely presumed that the petitioner-tenant was always ready and willing to purchase the suit land and in such a case, a formal intimation to be sent to the landlord or the Tribunal, as observed by the Courts below, would be completely inapposite as the Court can proceed on the premise that there has been substantial compliance with the requirement of sending intimation to the landlord and the Tribunal in law. He submits that if this view is accepted, then it will not be necessary to dwell upon any other contentions, though the same has found favour with the authorities below. According to him, in that case, the petitioners who are successors of the original tenant will be entitled to purchase the suit land by invoking the provisions of Section 43-1D of the Act. He submits that it will not be necessary to go into the wider question of applicability of other provisions, though those aspects have been considered by the authorities below.

5. On the other hand, Mr. Page, learned counsel for respondent No. 1 -landlord contends that all the authorities have concurrently found that no intimation has been sent by the tenant to the landlord and the Tribunal, as required by law. He submits that the law mandates that the tenant shall give an intimation to the landlord and the Tribunal and such an intimation should be sent within the prescribed period and in the manner provided by law. Failure to do so would entail in rendering the purchase ineffective. He submits that in the present case, the authorities below have rightly observed that the purchase has become ineffective and directed initiation of proceedings under Section 32P of the Act.

6. Mr. Sorankar for respondent No. 2 has not offered any comments with reference to the stand of respondent No. 2 trust.

7. Having considered the rival submissions, the first question that needs to be considered is whether the special provisions (Chapter III-AA of the Act) would apply to the fact situation of the present case. It is common ground that respondent No. 1 would qualify the definition of landlord within the meaning of Section 43-1A of the Act. Further, there is no dispute that when Chapter III-AA was introduced on October 20, 1964, proceedings between the landlord and the tenant under Section 32G were inconclusive. If that be so, applying the dictum of the Apex Court in V.S. Charati v. Hussein Nhanu Jamadar, , it will have to be held that Chapter III-AA would apply to the fact situation of the present case. In that case, the Apex Court has approved the Division Bench decision of this Court in Bhimrao Tatoba Sawant and Anr. v. Heramb Anant patwardhan and Ors., . The

Apex Court has held that if the rights of the tenant as a purchaser have not been crystallised, the special provisions of chapter III-AA of the Act would apply in relation to those lands. The Apex Court has further observed that Section 43-1E of the Act would come into operation only if there has been, so to say, a completed purchase of the land by the tenant under the provisions of chapter III. Applying the said principle to the present case, there can be no dispute that the proceedings under chapter III for purchase of the suit land were inconclusive on October 20, 1964 for which reason the case will be governed by the provisions of chapter III-AA of the Act. Once the case is governed by the provisions of chapter III-AA of the Act, then by virtue of the non obstante clause contained in the said provision, all the foregoing provisions in the Act would become inapplicable to that case. Further, from the scheme of the provisions contained in chapter III-AA of the Act, the same is a self-contained code and govern all actions between the landlord as defined in Section 43-1A and his tenant and their rights inter se will have to be adjudicated as per the special provisions of that chapter III-AA only.

8. The next question that will have to be examined is whether Section 43-1B of the Act will have any relevance for deciding the present case. There is no dispute that respondent No. 1 landlord did not exercise the right under this provision or for that matter under Section 32F(1)(a) as was applicable at the relevant time prior to 1964 and it has been so observed by all the authorities below. If that be so, it necessarily follows that Section 43-1B has not been invoked by the landlord in this case. I shall deal with the aspect as to whether the present landlord was entitled to avail of the provisions of Section 43-1B of the Act a little later. Suffice it to hold that Section 43-1B which deals with the right of landlord to terminate the tenancy, has not been availed of by the respondent-landlord in the present case.

9. Even the next provision, Section 43-1C has no application to the present case as it is common ground that the landlord has not initiated any proceedings for recovery or restoration of possession of the land under Section 31 or Section 33B or that the same were pending on the relevant date. It is, therefore, not necessary to detain ourselves with the purport of Section 43-1C of the Act.

10. The next provision that is relevant for our purpose is Section 43-1D of the Act. This provision enables the tenant to purchase land from the landlord. Section 43-1D reads thus :--

"43-1D. (1) Notwithstanding anything contained in the foregoing provisions of this Act, or any law, agreement, custom or usage to the contrary, but subject to the provisions of this section, a tenant holding land from a landlord shall, subject to the provisions of Section 32A, be entitled to purchase from the landlord -

 (a)     Where the landlord fails to make an application as required by Section 43-1B the entire land so held by him, and  
 

 (b)    in any other case, such part of the land held by the tenant as is left
with him after the termination of tenancy under Section 43-1B.   
 

 (2) The right to purchase land under Sub-section (1) shall be exercised within one year from the date on which possession of the land is obtained by the landlord in pursuance of the provisions of Section 43-1B; or as the case may be, after the expiry of the period referred to in the proviso the

Sub-section (2) of Section 43-1B; and intimation of exercise of the right shall be sent to the landlord and the Tribunal in the prescribed manner within the period aforesaid. 
 

 (3) The provisions of Sections 32 to 32E (both inclusive) and Sections 32G to 32N (both inclusive) and Section 32P, 32Q and 32R shall apply to the purchase of the land by a tenant under Sub-section (1) as those provisions apply in relation to the purchase of land under Section 32."   
 

11. On the plain language of this provision, in particular Sub-section (1), it would appear that the provision is relating to the right of a tenant holding land from a landlord (as defined in Section 43-1A) to purchase the land from the landlord, notwithstanding anything contained in the foregoing provisions of the Act, but subject to the provisions of that section and Section 32A. So far as Section 32A is concerned, the same limits the right of the tenant to purchase land upto the ceiling area. That question does not arise in the present case. There are two situations in which right of a tenant to purchase land from the landlord is circumscribed. The first is where the landlord fails to avail the right to terminate the tenancy as per Section 43-1B of the Act, such as the present case -- the tenant would become entitled to purchase the "entire land held by the landlord." The second is where the landlord had terminated the tenancy under Section 43-1B, the tenant is entitled to purchase such part of the land held by him as is left with him after the termination of tenancy as aforesaid. In the present case, there is no dispute that the landlord has failed to exercise right under Section 43-1B of the Act. A priori, Clause (b) of Sub-section (1) has no application to the present case -- whereas the tenant became entitled to purchase the entire land held by him. However, according to the respondent-landlord, the petitioner-tenant has failed to exercise his right by giving an intimation to the landlord and the Tribunal in the prescribed manner and time and the consequence of such failure is that the purchase becomes ineffective and the tenant will be disentitled to purchase the suit land. This is, according to the respondent, by virtue of Sub-section (2) of this section. It is, therefore, necessary to closely examine the purport of Sub-section (2) of this section. It is seen that the tenant who gets a right to purchase the land under Sub-section (1) is required to exercise that right within one year from the date on which possession of the land is obtained by the landlord in pursuance of the provisions of Section 43-1B of the Act. This part of that provision has no application to the facts on hand because the landlord has not exercised the right under Section 43-1B of the Act. The latter part of this section provides that in the other case means when the landlord has not exercised right under Section 43-1B, the tenant shall exercise the right after the expiry of the period referred to in the proviso to Sub-section (2) of Section 43-1B by giving an intimation, within one year therefrom. This stipulation will apply only when the landlord could have availed of the right if available under Section 43-1B of the Act, in particular as provided by the proviso to Sub-section (2) of Section 43-IB of the Act. Whereas, on reading Sub-section (2) as a whole, it would appear that the said provision is attracted only in cases where the landlord is entitled to exercise right and has or has failed to exercise the same under Section 43-1B of the Act. The question is, whether the landlord, in the present case, was entitled to exercise that right and if he was not competent or authorised by law to do so, then necessarily the

provisions of Sub-section (2) of Section 43-1D will have no application to the case on hand. But if he had that right and failed to exercise one, then that would be a different matter. It is, therefore, now necessary to go back to Sub-section (2) of Section 43-1B of the Act. which provides as follows :--

"(2) No tenancy of any land shall be terminated under Sub-section (1), unless a notice in writing is given to the tenant, and an application for possession under Sub-section (3-A) of Section 29 is made to the Collector:

Provided that in the case of a landlord who has ceased to be a serving member of the armed forces, such notice shall be given and application made within two years from the date of such cesser; and if he dies before the expiry of these two years without giving such notice or making such application, then within two years from the date of his death."

12. In the present case, it is not in dispute that much before the introduction of chapter III-AA of the Act on 20-10-1964, the landlord had retired as a member of the armed forces i.e. on 10-12-1959. Indubitably, the landlord could have terminated the tenancy only if he could fulfil the requirements of the proviso to Sub-section (2) of Section 43-1B and not otherwise. The right to terminate the tenancy under Section 43-1B became available only to those landlords who were in service when this special provisions were introduced or had retired as a member of the armed forces and two years period had not expired before October 20, 1964. In other words, if a person had ceased to be a serving member of the armed forces prior to October 20, 1962, such a person had no right to terminate the tenancy under Section 43-1B, though he may be a landlord within the meaning of Section 43-1A of the Act. As in the present case, the landlord had retired prior to October 20, 1962, then there would be no occasion for such a landlord to invoke the provisions of Section 43-1B of the Act and as a necessary consequence, the provisions of Sub-section (2) of Section 43-1D of the Act will not apply to such a case. To my mind, for application of Section 43-1D(2), the quintessence is that the landlord is entitled to exercise right under Section 43-1B or must have exercised that right or has failed to exercise one. But in a given case, if the landlord was not competent to exercise such a right under Section 43-1B of the Act, then the requirement of Sub-section (2) of Section 43-1D will have no application. If that be so, there would be no reason for the tenant of such a landlord to give an intimation to the landlord and the Tribunal as is sought to be contended before this Court, for there would be no question of purchase becoming ineffective as in that case, there would be no postponement of the tillers date. On the other hand, such a tenant would be governed by the provisions of Section 43-1D(1)(a) read with 43-1D(3) of the Act.

13. It is now, therefore, necessary to examine the purport of Sub-section (3) of Section 43-1D of the Act. That section postulates that the provisions of Section 32 to 32E (both inclusive) and Sections 32G to 32N (both inclusive) and Section 32P, 32Q and 32R shall apply to the purchase of the land by a tenant under Sub-section (1) as those provisions apply in relation to the purchase of land under Section 32. It is relevant to note that Sub-section (3) expressly excludes application of Section 32F of the Act, though that provision was applicable prior

to introduction of chapter III-AA of the Act. Besides, Section 43-1D has a non obstante clause making all the foregoing provisions of the Act inapplicable, except the ones got incorporated in Sub-section (3) thereof. This provision clearly suggests that the Legislature has invoked the doctrine of incorporation by reference and has intended that insofar as proceedings relating to the purchase of the land by a tenant was to be governed by the provisions referred to therein i.e. Sections 32 to 32E (both inclusive), 32G to 32N (both inclusive), 32P, 32Q and 32R of the Act as those provisions apply in relation to purchase of land under Section 32. This would mean that if Sub-section (2) of this Section 43-1D was attracted and if the tenant failed to send intimation in the prescribed time, the purchase would become ineffective on applying the principle of Section 32P of the Act. As observed earlier, that occasion will not arise in this case as Section 43-1D(2) is not attracted. On the other hand, Section 32 and 32G would apply on account of which the tenant will have to be declared as deemed purchaser on the tillers day i.e. 1-4-1957 and purchase price therefor will have to be determined. Having analysed the relevant provisions, there can be no doubt that chapter III-AA is a self-contained code governing all situations relating to termination of tenancy by landlords who are or have been serving members of the armed forces and also for purchase of their lands by tenants. As I have already noted that on application of Sub-section (3) of Section 43-1D, the provisions of Sections 32 to 32E (both inclusive) and Sections 32G to 32N (both inclusive) shall become applicable to the present case. If that be so, the parties will be governed by those provisions and, therefore, the Appellate Court has rightly determined the purchase price of the suit land by applying the principle under Section 32G of the Act. Accordingly, the decision of the Tribunal, which is impugned in the present petition, will have to be set aside and instead the order passed by the Special Land Acquisition Officer No. 14, Kolhapur, dated February 27, 1984 will have to be restored, though for aforementioned reasons.

14. Assuming that in the fact situation of the present case, the provisions of Section 43-1D(2) would apply whereunder the tenant was obliged to send intimation of his willingness to purchase, however, as rightly contended by the petitioners, applying the principle underlying the dictum of this Court in Shrikrishna Horambale's case (supra) (see paras 6, 7, 8 and 9 thereof), it can be safely held that the tenant has substantially complied with the said requirement as he has contested the matter all throughout, coupled with the fact that there is nothing on record to even remotely suggest that he had at any point of time expressed his willingness to purchase. Even for this reason the purchase, in the present case, cannot be said to have become ineffective. If that be so, the petitioners would be entitled to purchase the suit land.

15. The learned counsel appearing for respondent No. 1 has made a grievance that the authority could not have directed the tenant to pay the purchase price to the holder of the trust. However, this submission overlooks the fact that it is respondent No. 2 who is the owner of the suit land. All that the authorities below have held is that since the proceeds from the land are not fully utilised for the trust coupled with the fact that no certificate under Section 88B of the Act has been granted, the special provisions applicable to the land held by the trust will have no application, but that does not mean that the authorities have

held that the trust is not the owner of the suit lands. If the purchase price is to be paid under the law, the same will have to be paid to the owner of the land. Therefore, no fault can be found with the direction given by the appellate authority to pay the purchase price to the holder of the trust.

16. In the circumstances, this Writ Petition succeeds, the impugned order passed by the Tribunal is set aside and, as observed earlier, the order passed by the appellate authority is restored. However, the time given by the appellate authority for paying the purchase price in five equal instalments commencing from June 1, 1984 shall stand modified and the said amount shall be now payable in five equal yearly instalments, commencing from November 1, 2002. Rule is made absolute in the above terms. No order as to costs.

17. Certified copy expedited.

18. Parties may be provided with ordinary copy of this judgment duly authenticated by the Sheristedar of this Court.