Bombay High Court
Kopargaon vs Smt. Shakuntala Shankarrao Kolse on 26 November, 2010
Bench: S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.3765 OF 1991.
Laxman Raghunath Galande,
since deceased through L.Rs.
1-A. Vasant Laxman Galande,
age 55 years, occu. Agril.,
r/o Pimpalwadi, Tal.
Kopargaon,
Dist. Ahmednagar.
ig ...PETITIONER.
( Ori. Opponent)
VERSUS
1. Smt. Shakuntala Shankarrao Kolse,
adult.
2. Smt. Gayabai Narayan Sonawane,
adult.
3. Smt. Indumati Vitthalrao Bankar,
adult.
4. Smt. Savitrabai Radhakrishna Ghadge,
adult.
Notices to be served on the
Power of Attorney Holder Shri
Shankarrao Bhaurao Kolse,
r/o Gondegaon, Taluka Shrirampur,
Dist. Ahmednagar. ..RESPONDENTS.
(Ori. Applicants).
...
Shri R.L. Kute, Advocate holding for
Shri R.N. Dhorde, Advocate for petitioner.
Shri A.H. Kasliwal, Advocate for R.No.1 to 4.
...
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2
CORAM: S.S. SHINDE,J.
RESERVED ON : 19th NOVEMBER, 2010.
PRONOUNCED ON : 26th NOVEMBER, 2010.
JUDGMENT:
1. This writ petition takes exception to the
judgment and order dated 24th December, 1990
passed by the Maharashtra Revenue Tribunal,
Pune-1 ig in Revision Application No.
MRT/AH/III/2/88(TNC).B.46/88) arising out of
Tenancy Case No.112of 1982 and Tenancy Appeal No.
24 of 1986.
2. The brief facts of the case are as under:
The suit land was of ownership of Namdeo
Vithoba Dhanavate, who was lunatic on 1st April,
1957 and he died on 20th June, 1971. Heir-ship of
Namdeo was devolved on applicants and his wife
Godabai who died on 16th October, 1981. The
applicants and Godabai had filed T.C. No.7/1974
for obtaining possession from the opponent i.e.
present petitioner on the grounds that the
opponent i.e. present petitioner had failed to
intimate his willingness to purchase the suit
land on the date of death of original landlord
Namdeo Vithoba Dhanavate, who died under mental
disability on 20th June, 1971.
The Additional Tahsildar, who had conducted
the T.C. NO.2/74 ordered disposal of the suit
land under Section 32.P(2) of the Tenancy Act.
Against that order T.A. NO.34/79 was preferred by
the present petitioners i.e. original opponents.
The same was dismissed. Then the petitioners
herein filed revision application No.
MRT/AH/III/8/80 before the Maharashtra Revenue
Tribunal which was also dismissed on the ground
that there was no second postponement on account
of succession by disabled person. This order of
the tribunal was challenged by the petitioner
herein by way of filing Writ Petition No.2260 of
1985. The said writ petition was summarily
dismissed by this Court on 27th June, 1985. It
appears that the said order in Writ Petition No.
2260 of 1985 attained finality.
3. The respondents herein filed an application
before the Tahsildar, which was registered as TC
No.112/1982 and by his judgment and order dated
31st January, 1986, the Tahsildar held that the
provisions of section 32-P of the Bombay Tenancy
and Agricultural Lands Act, 1948 (for short,
referred to as "the Tenancy Act") are not
applicable and therefore, the said application
was held to be not tenable. Being aggrieved by
the said order, the respondents herein preferred
Appeal No.24/86 before the Sub Divisional
Officer, Sangamner, who confirmed the said
judgment and order of the Tahsildar. Being
aggrieved by the said judgment and order,
revision application was filed before the
Maharashtra Revenue Tribunal. The Maharashtra
Revenue Tribunal held that both the authorities
have erroneously held that the provisions of
Section 32-P of the Tenancy Act are not
applicable. It is further held that in view of
the fact that earlier revision application has
been dismissed, in which it was held that the
land should be disposed of under Section 32-P(2)
of the Tenancy Act and therefore, both the
authorities ought not to have held that the
provisions of section 32-P are not applicable.
It appears that being aggrieved by the judgment
and order of the appellate authority in Appeal
No.23/1986 and 24/1986, the respondents herein
filed revision application No.MRT/AH/III/1/88
which had arisen out of the proceedings of T.C.
NO.149/82 started by the applicants for
possession of the suit land bearing Gat No.226/1C
admeasuring ig 5 H 59 R of village Wasi under
Puntamba, Taluka Kopargaon, under Section 31 of
the Tenancy Act. This tenancy case was decided
by the Additional Tahsildar, Kopargaon on 31st
January, 1986 by disallowing the application of
the landlord for possession. The said order was
challenged in appeal in T.A. No.23/86. The same
was dismissed on 4.9.1987 and against the said
order, Revision No.MRT/AH/III/1/88 was preferred.
Similar revision application No. MRT/AH/III/2/88
arose out of the proceedings started by the
applicants in T.C. No.112/82 for possession of
suit land under Section 32-P of the Tenancy Act.
The said case was decided by the Tahsildar,
Kopargaon by order dated 31st January, 1986. The
application of the applicants was dismissed by
the said order. The applicants preferred T.A.
NO.24/1986 before the Sub Divisional Officer,
Sangamner. This T.A. NO.24/86 and T.A. No.23/86
were dismissed by common judgment by the Sub
Divisional Officer on the same date i.e. 4th
September, 1987. Against this common order
passed in T.A. NO.24/86, revision Application
No.MRT/AH/III/2/88 was preferred.
4. The
Maharashtra Revenue Tribunal by its
judgment and order dated 24th December, 1990
allowed the revision application No.
MRT/AH/III/2/88 and the order in Tenancy Appeal
No.24/86 and Tenancy Case 112/82 came to be set
aside. However, the revision application NO.
MRT/AH/III/1/88 was dismissed. In para 6 of the
judgment, the tribunal has observed thus:
"6. ..... .... I allow this revision
application No. MRT/AH/III/2/88 and set
aside the orders passed in T.A. NO.24/86 and
T.C. NO.112/82 and remand this matter to the
trial court to proceed u/s 32-P(2) of the
B.T. & A.L. Act."
5. The learned Counsel for the petitioner
submitted that the revision application No.
MRT/AH/III/2/88 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 ofig 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 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 not 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 petitioner would submit that the writ
petition deserves to be allowed.
8. 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 No.
MRT/AH/III/8/80 dated 8th February, 1985 attained
finality ig in respect of opponent's right to
purchase the suit land under Section 32-F of the
Tenancy Act. The Maharashtra Revenue Tribunal,
taking into consideration the rejection of the
above revision filed by the petitioner has
rightly allowed the Revision Application No.
MRT/AH/III/2/88 and set aside the orders passed
in T.A. NO.24/86 and T.C. NO.112/82 and remand
this matter to the trial court to proceed u/s 32-
P(2) of the Tenancy Act. Therefore, the learned
Counsel for the respondents would submit that no
interference is warranted under the extraordinary
jurisdiction of this Court under Article 227 of
the Constitution of India.
7. I have given due consideration to the rival
submissions advanced on behalf of the respective
parties. As stated while narrating the facts in
this judgment that the Revision Application No.
MRT/AH/III/8/80 filed by the petitioner herein
came to be dismissed by order dated 8th February,
1985 and as a result, the petitioner herein has
lost right to purchase the suit land under
Section 32-F of the Tenancy Act. It is not in
dispute that
ig the petitioner herein filed Writ
Petition No.2260 of 1985 challenging the
judgment and order dated 8th February, 1985 passed
in Revision Application No. MRT/AH/III/8/80 and
this Court by order dated 27th June, 1985
summarily dismissed the said writ petition.
Therefore,the judgment and order passed by the
Maharashtra Revenue Tribunal in Revision
Application No. MRT/AH/III/8/80 dated 8th
February, 1985 has attained finality. As a
result of the said judgment and order, the
petitioner herein has lost right to purchase the
suit land. In the judgment and order dated 8th
February, 1985 passed in said revision
application, the Maharashtra Revenue Tribunal has
observed thus:
"So in this case right to purchase the land
was devolved on tenants, on death of Namdeo
which had occurred on 206.71. He could have
exercised this right on or before 20.6.73.
This right was not exercised by present
applicant. The applicant has admitted that
the matter in 32-G was taken by him up to
High Court which had decided finally the
matter on 17.12.1971 confirming the order of
the dropping of 32-G proceeding.
ig The High
Court's order is on pages 39 to 43. I had
been stated in this order that the landlord
is subject to mental disability and the
proceeding U/s 32-G are rightly dropped. It
had been laid down that the application
fails and rule discharged. The applicant
tenant has admitted that he had not after
this final verdict of the deceased Namdeo
being subject to mental disability given any
notice regarding his willingness to
purchase. So this admission clearly proves
that the applicant tenant had not within 2
years from the death of deceased Namdeo i.e.
from 20.6.1971 given notice of his
willingness to purchase. So he fails to
show his willingness to purchase as
prescribed U/s 32-F of the Tenancy Act. So
he loses his right. The same finding has
been given by both the lower courts which
needs no interference."
8. Therefore, since the above mentioned
judgment and order of the Maharashtra Revenue
Tribunal has been confirmed by this Court in Writ
Petition No.2260 of 1985, the finding of fact and
admission of the petitioner that before 31st
April, 1974 he had not given notice of purchase,
has attained finality.
9. Another argument of the learned Counsel for
the petitioner that the widow who succeeded the
original landlord Namdeo was also under the
disability category and therefore, there was no
question of giving any 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 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
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."
10. 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 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,
ig 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 petitioner 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
petitioner herein should have given purchase
notice within a period of two years from the
death of Namdeo. This position has been
considered by the Maharashtra Revenue Tribunal in
the earlier round of litigation in an application
under Section 32-F filed by the petitioner, which
attained finality on dismissal of the Writ
Petition No.2260 of 1985 filed by the petitioner
herein.
11. In the facts of this case, the Maharashtra
Revenue Tribunal has taken into consideration the
earlier round of litigation and concluded that it
was not open for the Tahsildar as well as the Sub
Divisional ig Officer to take a different or
contrary view than the view which was taken by
the Maharashtra Revenue Tribunal vide its order
dated 8th February, 1985 passed in Revision
Application No. MRT/AH/III/8/80. In fact, the
authorities should have acted in accordance with
the said judgment and order of the tribunal.
12. Taking overall view of the matter, and
taking into consideration the entire factual
matrix and more particularly, the judgment and
order dated 8th February, 1985 passed in Revision
Application No. MRT/AH/III/8/80 by the
Maharashtra Revenue Tribunal, which attained
finality by virtue of the dismissal of Writ
Petition No.2260 of 1985 filed by the petitioner
and in the light of the above discussion, I do
not find any reason to interfere in the findings
recorded by the Maharashtra Revenue Tribunal.
13. Hence, the writ petition is devoid of merits
and the same is dismissed. Interim relief stands
vacated. Rule stands discharged.
ig [ S.S. SHINDE, J ]
.....
Kadam.
WRIT PETITION NO.3765 OF 1991.
26th NOVEMBER, 2010.
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.S. SHINDE.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? } Yes.
2.
3.
To be referred to the Reporter or not?
Whether Their Lordships wish to see
} Yes
the fair copy of the judgment? } No.
4. Whether this case involves a substantial }
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? } No.
5. Whether it is to be circulated to the }
Civil Judges? } No.
6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? } No.
[Prakash Kadam]
Private Secretary to
the Honourable Judge.
