Madhav Dashrath Vahadane vs Sou. Shakuntalabai Shankarrao ...
2010 Latest Caselaw 254 Bom

Agricultural Lands Act, and the said application is

not decided, and therefore, unless the tenants are

evicted under Section 23(P), the tenants are liable

to pay rent. It has been further held that the

tenants having not paid the rent from 1971, the

tenants liable to be evicted under Section 25(1) of

the Bombay Tenancy and Agricultural Lands Act. The

appeal came to be allowed.

8 The petitioners being aggrieved by the said

order in appeal, preferred revision being revision

No.MRT.AH.III.4/94 (TNC.B.74/94) Pune-1. In the said

revision application, the petitioners contended that

since the proceedings already pending before the

High Court in Writ Petition No.536 of 1992, the

present proceedings cannot be entertained. The

petitioners have become deemed tenants, therefore,

the petitioners are not liable to pay rent, and

therefore, tenancy cannot be terminated on that

ground. Similarly, no prior notice have been given,

issuing notice is mandatory. Despite the said fact,

Maharashtra Revenue Tribunal, has dismissed the

revision by his order dated 22nd April, 1998.

wp536.92.

9 It is the contention of the petitioners that

the they are the tenants prior to 1st April, 1957.

However, original land-lord was lunatic and

therefore, in view of the provisions of Section

32(F), the petitioners could not purchase the suit

land, as the land-lord himself was lunatic. The

petitioners states that after the death of the land-

lord, he is succeeded by widow Godabai. It is the

case of the petitioners that since the widow Godabai

was also disabled, in view of the provisions of

32(F), the petitioners could not purchase the said

land, as long as the widow Godabai was alive. The

said Godabai died on 16th October, 1981 as a result

of which the present respondents succeeded to her

properties. It is the case of the petitioners that

immediately, thereafter, they gave notice on 8th

October, 1982 for purchase of the suit land.

Therefore, the petitioners deemed to have become

owners of the said land. However, said contention

was negatived by the Tribunal.

The petitioners being aggrieved by the Judgment

wp536.92.

and Order passed by the Maharashtra Revenue

Tribunal, dated 27th January, 1994 passed by the Sub

Divisional Officer, Sangamner in Appeal No.13 of

1992 and confirmed by the Maharashtra Revenue

Tribunal in Revision No.MRT.AH.III.4/94 (TNC.B.

74/94) Pune-1, by judgment and order dated 22nd

April, 1998 filed Writ Petition No.3695/1998, and

being aggrieved by the judgment and order dated 21st

April, 1990 passed by the Maharashtra Revenue

Tribunal in Revision No.MRT.AH.X.6/88 (TNC.B.246/88)

Pune-1, filed Writ Petition No.536 of 1992.

10. The learned Counsel for the petitioners submitted

that the revision application No.MRT.AH.X.6/88 (TNC.B.

246/88) & Revision No.MRT.AH.III.4/94 (TNC.B.74/94)

filed by the respondents should not have been allowed

by the Maharashtra Revenue Tribunal. It is submitted

that the Tahsildar as well as appellate authority i.e.

Sub Divisional Officer held against the respondents

and, therefore, the Maharashtra Revenue Tribunal should

not have interfered in the judgment and order of the

Tahsildar as well as the Sub Divisional Officer. It is

further submitted that the Tahsildar as well as the Sub

Divisional Officer had taken the view that the

wp536.92.

provisions of section 32-P are not applicable and

therefore, there was no case for interference by the

Maharashtra Revenue Tribunal. It is further submitted

that in view of the provisions of section 32-F the

Maharashtra Revenue Tribunal has erroneously held that

the provisions of section 32-P of the Tenancy Act are

applicable. It is further submitted that the Tahsildar

as well as the Sub Divisional Officer had rightly held

that the

application under Section 32-P is not

maintainable. Therefore, the learned Counsel for the

petitioners would submit that the writ petition

deserves to be allowed.

11. The learned Counsel for the respondents relied

upon the judgment and order of the Maharashtra Revenue

Tribunal and submitted that the order passed by the

Maharashtra Revenue Tribunal in Revision Application

needs no interference under the extraordinary

jurisdiction of this Court under Article 227 of the

Constitution of India.

12. The argument of the learned Counsel for the

petitioners that the widow who succeeded the original

landlord Namdeo was also under the disability category

and therefore, there was no question of giving any

wp536.92.

purchase notice prior to the death of widow, is

required to be rejected in the light of para 7 of the

reported judgment in the case of Harshavardhan

Shrinivas Potnis v. Mahadu Pundalik Gangurde (AIR 1980

BOMBAY 198). Para 7 of the said judgment reads, thus:

"7. There can be no doubt that the general provisions with regard to the statutory transfer of ownership made in section 32(1)

deal with cases where the landlords were entitled to exercise their right of resumption

under section 31(1) excluding the landlords referred to in section 31(3), who have not exercised their right of resumption. The provisions of section 32 will not come into

operation where the landlords, referred to in sub-section(3) of section 31, have not exercised their right of resumption. Provision had, therefore, to be made in order to provide for statutory right of ownership in respect of

tenants of the class of landlords referred to in sub-section(3) of section 31. This

provision has been made in section 32(F)(1)

(a). Section 32(F) clearly refers to a landlord who is a minor or a widow or a person subject to any mental or physical disability. It is then provided that the tenant of such a

landlord shall have the -right to purchase such land under section 32 and the conditions which are required to be satisfied by such a tenant are specified in section 32F(1). The period during which such a right is to be

exercised is also prescribed in section 32F(1). The Legislature has clearly laid down that the right to purchase by such a tenant has to be exercised within one year from the expiry of the period during which landlord referred in section 32F(1) is entitled to terminate the tenancy under section 31. The words "Such landlord" relate to the landlords mentioned in the opening part of the sub- section viz. a minor, a widow or a person subject to any mental or physical disability. Therefore, section 32 and 32(F) have to be read together. As already pointed out, right

wp536.92.

to purchase is a right created by section 32. Section 32 did not and could not operate in certain cases where no steps were taken by

either a minor, or a widow or a person subject to any mental or physical disability in exercise of right of resumption under section 31(1) and that is why a special provision had to be made under section 32(F) to deal with

such cases. Therefore, for ascertaining the period during which right to purchase has to be exercised, we must go back to section 31(3), because it is there that the period during which a minor or a widow or a person

subject to any mental or physical disability, is entitled to terminate the tenancy is

provided. When we go back to section 31(3), so far as the widow is concerned, a provision is made in sub-clause(2), the" effect of which is that where the landlord is a widow, an

application for possession may be made by the successor-in title of a widow within one year from the date on which her interest in the land ceases to exist. Therefore, where in a case like the instant one, a widow had died

bequeathing certain property to the minor, the minor becomes successor-in-title of the widow.

This successor-in-title is entitled within one year from the date of the death of the widow to make an application for possession. Thus within one year from the expiry of this period of one year that a tenant must exercise his

right of purchase. The fact that he is a minor at the time of the death of the widow is, in our view, wholly irrelevant and such a minor will not be entitled to contend that he can take advantage of the extended period in

section 31(3) so as to enable him to terminate the tenancy of the tenant of the land bequeathed to him by making an application for possession after he attains majority. Section 31(3) deals only with the landlords who were disabled landlords at the time when the notice was required to be served and an application for possession could have been made under section 31(2). If a landlord wants to take advantage of the extended period in sub. section(3) of section 31, two conditions must be satisfied. One is that he must fall under one of the categories mentioned in

wp536.92.

subsection(3) of section 31 and second is that he must be the landlord on 31st December 1956 when a notice to terminate the tenancy has to

be given. If anyone of these two conditions are not satisfied, then benefit of section 31(3) cannot be availed of by a landlord, the minor who succeeds to the interest of a widow after 31st December 1950 is not a person who

was a landlord either on 31st December 1956 and he cannot take advantage of the extension of the period provided for a minor who was a landlord on 31-12- 1956. The period during which the minor after having succeeded to the

widow could have terminated the tenancy of the tenant under section 31(3) is one year from

the time of her death The intimation required to be given under section 32F(I A) by the tenant in order to exercise his right of purchase should have been given within one

year from the expiry of the period of one year referred to in section 31(3). Thus the period in the instant case, during which the tenant should have served an intimation, was within two years from the death of the widow."

13. Perusal of the para 7 of the judgment in

Harshavardhan's case (supra) would clearly spell out

that if the landlord wants to take advantage of the

extended period under subsection (3) of Section 31 of

the Tenancy Act, two conditions must be satisfied; One

is that he must fall under one of the categories

mentioned in subsection(3) of section 31 and second is

that he must be the landlord on 31st December 1956 when

a notice to terminate the tenancy has to be given. If

anyone of these two conditions are not satisfied, then

benefit of section 31(3) cannot be availed of by a

landlord. The Division Bench of this Court in the said

wp536.92.

judgment has also considered the right of the tenant to

give purchase notice. The Court has also held that the

postponement of the right to purchase land conferred on

the tenant by the provisions of the Tenancy Act can

take place only once and right of tenant to purchase

the land in the instant case was postponed because the

landlord Namdeo was a lunatic person. In the instant

case, Namdeo died in the year, 1971. Godabai, widow of

Namdeo succeeded him. It is an admitted position that

on the appointed date, the widow Godabai was not

landlord of the suit property. Since only one

postponement of the right to purchase is conferred on

the tenant and said postponement by the petitioners

herein was done during the survival of Namdeo and after

death of Namdeo in 1971, there was no question of

further postponement of the purchase notice. The

petitioners herein should have given purchase notice

within a period of two years from the death of Namdeo.

14. Therefore, the contention of the petitioners

that after death of Godabai, the petitioners have

given notice within a period of two years, cannot be

accepted. As stated earlier, the petitioners failed

to give purchase notice within two years from the

date of death of Namdeo and, thereby, they have lost

wp536.92.

the right to purchase the suit property. Therefore,

in my opinion, there is no substance in this writ

petition and the same deserves to be dismissed.

15. It is also not out of place to mention at this

juncture that the Writ Petition No.3765 of 1991 was

filed by the tenants against the landlord.

Incidentally, landlords therein are the respondents

herein. In that case, this Court has exhaustively

dealt with the arguments of the petitioner therein

that after death of Godabai, he had given notice

within two years, and therefore, he is entitled to

purchase the land, has been negated and rejected.

In that case also this Court has held that from the

death of Namdeo, the tenants therein should have

given notice within two years and since no notice

was given within two years, they lost the right to

purchase the suit property.

16. So far as another judgment and order passed in

revision by the Maharashtra Revenue Tribunal dated

22nd April, 1998, which is under challenge in Writ

Petition No.3695/1998, is concerned, the tribunal on

wp536.92.

the basis of the evidence and material brought on

record, recorded the finding of fact, as under:

".... it is found that the present revision

applicants neither paid the rent nor deposited the rent in the Tahsil Office and nor any evidence is produced that they had paid the rent to the landlord-opponents. The proceeding under Sec. 32-P of the Tenancy Act, though it

is not finalized and till the revision applicants are evicted from the land, their

tenancy right are subsisted in the disputed land. So, there cannot be a bar to the proceedings under Sec. 14, 25(2) and 29 of the

Tenancy Act. So admittedly, the application was maintainable before the trial court."

17. Therefore, the Maharashtra Revenue Tribunal has

held that since the petitioners herein were

admittedly tenants of the suit land, they were bound

to pay some rent. However, admittedly rent had not

been paid by them. Therefore, the tribunal has held

against the petitioners by dismissing the revision

applications.

18. Taking overall view of the matter, and taking into

consideration the entire factual matrix and more

particularly, the impugned judgments and orders passed

in Revision Applications by the Maharashtra Revenue

Tribunal and in the light of the above discussion, I do

wp536.92.

not find any reason to interfere in the findings

recorded by the Maharashtra Revenue Tribunal.

19. Hence, the writ petitions are devoid of merits and

the same are dismissed. Interim relief, if any, stands

vacated. Rule stands discharged.

                                    
                                              [ S.S. SHINDE, J ]
                        ig               ...

     Kadam.