Hindurao Ganpati Mandhre vs Mahadeo Vittal Mandhre & Anr
2012 Latest Caselaw 423 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                         APPELLATE CIVIL JURISDICTION
                         WRIT PETITION NO.1195 OF 1995




                                                         
     Hindurao Ganpati Mandhre                              .. Petitioner

                vs.




                                                        
     Mahadeo Vittal Mandhre & anr               .. Respondents

Mr.S.B.Deshmukh for Petitioner

CORAM : B.P.DHARMADHIKARI, J ig DATED : 30th November, 2012 ORAL JUDGMENT

1. The challenge by the Petitioner in this matter is to the Judgment delivered by the M.R.T.Pune-1 in Revision Application registered as MRT.No.NS.IV.3.911 filed by the Original Respondent no.1 now represented through his legal heirs.

This Court has issued Rule in the matter on 28.5.1995 and stayed further

proceedings on 9.2.1996.

2. The facts are not in dispute. The lands at Wai, form the subject matter of

this litigation. On 1.4.1957 i.e. the tillor's day a widow by name of Smt Krishnabai was recorded as permanent tenant on these lands owned by one Sakharam Ganu Madhare. Ganpat Krishna Mandhre was recorded as a tenant. On 13.10.1062 proceedings under section 32F were postponed by the Tahsildar and

the Agriculture Land Tribunal, Wai as the tenant was a widow. On 30.10.1988 the proceedings under section 32G were disposed of on certain grounds by the very same Authority. This order was set aside by the S.D.O. Mahabaleshwar on 15.11.1989 who directed a fresh inquiry. The fresh inquiry was conducted by the

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Tahsildar Agriculture Land Tribunal, Wai and vide order dated 28.8.1990 earlier order passed on 30.10.1988 was restored.

3. Against this order Hindurao Ganpati Madhare i.e. the present Petitioner filed an Appeal registered as Appeal No.101 of 1990 before the S.D.O.Mahabaleshwar. After noting all these facts the S.D.O. found that the

order of Tahasildar could not have been sustained. He noted that there were no provisions for staying or indefinitely suspending the matters of deemed purchase in relation to lands in possession of widows and hence order dated 13.10.1962

was void and ignored it. He thereafter noted that on 1.4.1957 Krishnabai was a permanent Agriculturist. He therefore, allowed the Appeal and declared that the

lands have been purchased by tenant Ganpati Mandhare through his heirs Hindurao Ganpati Madhare (present Petitioner) on 1.4.1957. The lower Authority

was directed to determine the purchase price in accordance with law.

4. The heirs of the land owners challenged this decision in Tenancy Revision

mentioned supra before the M.R.T. The M.R.T. found that the original permanent

tenant being a widow, tillor's day not postponed and after death of the widow after statutory disability coming to end, it was necessary for tenant Ganpati Mandhare to exercise his right under section 32F of Bombay Tenancy and

Agricultural Lands, Act, 1948. (Hereinafter referred to as Tenancy Act). As those rights were not exercised, the provisions of section 32G were not applicable. The Revision therefore came to be allowed.

5. Learned Counsel for the Petitioner in this background has urged that the Revisional Authority has fallen into an error in treating section 32F as the only mode in which a tenant can exercise purchase right. Submission is it is a

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additional mode over and above the provisions of section 32 which confer deemed ownership upon a tenant on tillor's day i.e.1.4.1957. He points out that

Krishnabai expired on 22.12.1969 and proceedings instituted and going on

during her life time therefore could not have been ignored. It is pointed out that on 1.4.1957 the deceased Krishnabai had become owner and it was not necessary for Ganpati Mandhare to again exercise any option. Support is being taken from

the Judgment of this Court reported in 2005 (3) MH.L.J. 1082. (Bajirao Jaisingrao Ghadage vs Rajaram Yeshwant Chugule) Learned Counsel therefore submits that order of M.R.T, should be quashed and set aside and order

of the S.D.O. should be restored.

6.

Learned counsel for the landowners (through heirs) has submitted that the provisions of section 32 and 32F cannot be read independently and are not

two distinct modes. Support is being taken from the Judgment of Full bench of this Court reported at 1971 (Vol.63) The Bombay Law Reporter 792. (Vishnu Shantaram Desai vs Smt Indira Anant Patkar) It is submitted that M.R.T. has

correctly applied law in the light of provisions of section 32F (b). The right of

tenant was postponed till the death of the widow Krishna and after her expiry it was incumbent for the successor to exercise necessary option. As, that has not been done, the view taken by the M.R.T. is in accordance with law. Learned

counsel has also relied upon the Judgment of the learned Single Judge of this Court reported in 1998 (1) Mh.L.J. 562 (Gajarabai Narayan Chauvan vs Ratnabai Vishnu Gaikwad) to substantiate these contentions.

7. A perusal of the provisions of section 32 of the Tenancy Act reveals that the said section is placed in Chapter III which deals with special rights and privileges of tenants and makes provisions for distribution of land for personal

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cultivation. Part I which consists of section 31, section 31A to 31D is about termination of tenancy by landlord for personal cultivation and for non

agricultural use. Part II which begins with section 32 is abut purchase of land by

tenants. Section 32 F is titled as right of tenant to purchase where landlords is a minor i.e. where the landlord is under disability. Section 32G is about the procedure to be followed by the tribunal for determining the price of land to be

paid by tenants. Section 32 has got heading which reads :"tenants deemed to have purchased land on tillor's day ".By sub section 1 on 1.4.1957 the tenant who is a permanent tenant and is cultivating land personally or who is not permanent

tenant but cultivates the land personally is deemed to have purchased from his landlord such land free from all encumberances. This is however subject to other

provisions of section 32 and provisions contained in succeeding sections.

Thus, by fiction on 1.4.1957 a permanent tenant has been constituted a deemed purchaser. The relevant provisions of section 32G deals with procedure to be followed by the Tribunal. As per sub-section 1 after 1.4.1957 the Tribunal

has to issue a public notice in the prescribed form in the village within its

jurisdiction calling upon all tenants who under section 32 are deemed to have purchased the land of landlords and all such landlords and all other persons interested therein to appear before it on the date specified in the notice. In

addition, the individual notice for the said purpose is also envisaged. On such date the Tribunal has to then record the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. If such a tenant fails to

appear or then fails to make a statement about his readiness and willingness to purchase, the Tribunal has to pass order declaring that such a tenant is not willing to purchase land and that purchase is in effective. If such a tenant is ready and willing under sub section 4, the tribunal has to proceed to determine the

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purchase of such land in accordance with provisions of section 32H and sub- section 3 of section 63A.

8. Section 32F is a right of tenant to purchase where the landlord is a minor. Sub section (1) begins with non-obstent clause deals with cases in which the landlord is either a minor or a widow or a person subject to any mental

disability. Sub section (b) deals with cases where the tenant is a minor or widow or then a person under disability. As per this clause (b) sub section (1) right of purchase under section 32 maybe exercised by the successor in title of widow

within one year from the date on which her interest in land ceases to exist. Various Judgments on which reliance is placed needs to be appreciated in this

background. A Full bench Judgment in the case of Vishnu Shantaram Desai vs Smt Indira Anant Patkar supra shows that the Full Bench has considered the

provisions of section 32 as also section 32F and noted that these two sections did not confer independent rights to purchase upon tenant. Section 32F prescribe a procedure for exercise of such right to purchase land conferred upon the tenant

by section 32, when the landlord or tenant or both of them are under disability.

The Judgment of the learned Single Judge of this Court relied upon by the Petitioner shows that section 32F of Tenancy Act does not create any additional right in favour of tenant and the right is created by section 32 which in

appropriate situation, is made subject to section 32F.

9. A perusal of this Judgment of the learned Single Judge shows that one

question answered is whether section 32F has application to land held by tenants. The M.R.T. had held that section 325 was applicable only in cases where landlord was entitled to terminate tenancy under section 31 of the Act.

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10. The Judgment of the learned Single Judge reported in 1998 (1) Mh.L.J. 562 i.e. Gajrabai Naray Chauvan vs Ratnabai Vishnu Gaikwad) relied upon

by the Respondents reveals that by virtue of section 32F (a) and (b) a widow has

not been given any right to apply for fixation of purchase price under section 32F of the Act and proceedings initiated against a widow were held nullity. The facts there show that the property was in enjoyment of the widow as tenant and suo

motu proceedings were taken for determination of the price under section 32G. In the said proceedings it was recorded that the widow was not cultivating the land. After her death, the successor in interest filed an application under section

32G of the Act for fixation of purchase price. The landlord raised a preliminary objection and on that basis claimed that her successor in interest could not have

claimed any right in which section 32G of the Act and invoked the principles of Resjudicata. The above findings are recorded in this background.

11. Thus, the above decision and perusal of the relevant provisions do not show that the widow is not entitled to purchase the land of which she is a permanent

tenant and in fact by operation of law under section 32, she also is deemed to

have purchased the land on tillor's day. Only to make welfare provisions more effective, in section 32F a further protection has been extended and in case a widow has not exercised such a right, her successor in interest is permitted to

exercise it within two years from the date on which her interest in land ceases to exist. It is therefore apparent that the right is to be exercised only once. Here, the S.D.O.has correctly found initiation of proceedings during the life time of the

widow could not have been declared as invalid or bad and said proceedings therefore could not have been suspended or stayed. He has therefore correctly ignored earlier order of the Tahasildar dated 13.10.1962. The M.R.T.has failed to appreciate this position and there was no occasion for the Petitioner to

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exercise any right to purchase after the death of a widow in the present facts.

12. In view of this position, the impugned judgment and order delivered by

the M.R.T. on 7.2.1995 is quashed and set aside. Revision filed by the Respondents is dismissed and Judgment of the S.D.O. dated 21.3.1991 is restored.

13. Rule is made absolute accordingly. However, there shall be no order as to costs.

                           ig                    (B.P.Dharmadhikari, J)
                         
      
   







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