Bombay High Court

Smt. Kondabai Ganu Barkale & Ors vs Shri Pandit @ S. D. Patil (D.H.) ... on 18 December, 2015

Bench: M.S. Sonak

    SKC / DSS                                                                 JUDGMENT-WP-3055-91



                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL   APPELLATE  JURISDICTION




                                                                                       
                             WRIT PETITION NO. 3055 OF 1991 




                                                               
           Smt. Kondabai Ganu Barkale
           (since deceased through her Legal 
           Heirs Smt. Housabai P. Bhongale & ors.)




                                                              
           and others                                                   ..       Petitioners

                             vs.




                                                 
           Shri. Pandit @ Shankar D. Patil 
           (since deceased through his Legal 

           and others
                                   
           Shri. Waman S. Patil & ors.) 
                                                                        ..       Respondents
                                  
            Mr. S.G. Karandikar a/w. Mr. A.R. Kapadnis for  Petitioners 
            Mr. S.S. Patwardhan for Respondent Nos.1A, 2A to 2 E. 
             
                                           CORAM :  M. S. SONAK, J.

Date of Reserving the Judgment : 27 November 2015.

Date of Pronouncing the Judgment : 18 December 2015.

JUDGMENT :-

1] This petition takes exception to the judgments and orders

dated 30 October 1986, 30 June 1987 and 4 December 1990 made

by the Additional Tahsildhar, Sub-Divisional Officer (SDO) and

Maharashtra Revenue Tribunal (MRT) under the provisions of the

Maharashtra Tenancy Agricultural Lands Act, 1948 (Tenancy Act).

            The   said     Authorities   under   the   Tenancy   Act   have   held   that   the 







     SKC / DSS                                                                  JUDGMENT-WP-3055-91

petitioners right to purchase the suit property has been rendered

ineffective in terms of Section 32F and Section 32O of the Tenancy

Act, but the matter was remanded to the Tahsildar for conduct of

enquiry in terms of Section 32P (2)(b) or (c) of the Tenancy Act.

2] The predecessors-in-title of the petitioners, as well as the

petitioners themselves, shall be referred to as the 'tenants'. Similarly

the predecessors-in-title of the respondents as well as the

respondents themselves, shall be referred to as the 'landlords' for

sake of convenience.

3] There is no dispute that the suit property, which is an

agricultural property had been leased by the landlords to the

tenants much prior to the Tillers' day i.e. 1 April 1957. There is also

no dispute that the suit property was 'watan land' or 'watan property'

as defined under Sections 2(1)(l) and 2(1)(m) of the Maharashtra

Revenue Patels (Abolition of Office) Act, 1962 (Watan Abolition

Act). On the ground that the provisions of the Tenancy Act do not

apply to watan lands, the proceedings initiated by the tenants for

purchase of the suit property under Section 32G of the Tenancy Act

were dropped by the Tahsildar, by order dated 25 August 1960. The

SKC / DSS JUDGMENT-WP-3055-91

'appointed day', in terms of Section 2(1)(a) of the Watan Abolition

Act was notified as 1 January 1963. On this day, however, the

landlady was a widow and consequently a disabled landlady in

terms of the provisions of Section 32F of the Tenancy Act. Such

widowed landlady expired on 29 January 1972. The formal order of

re-grant, consequent upon the abolition of watan was made on 2

September 1972. There is, however, no clear record as to the precise

date upon which the occupancy price was paid by the landlords in

respect of such re-grant. In paragraph '8' of the judgment and order

dated 4 December 1990 made by the MRT, there is a statement that

from the record it appears that occupancy price was already paid

before the re-grant order was passed. From this statement, however,

it is not clear whether occupancy price was paid after demise of

widowed landlady on 29 January 1972 or prior to her demise. This

aspect assumes relevance and is therefore, referred to at the outset.

On 30 December 1974 (3 December 1974), Mutation Entry No. 1477

was entered in the village record to give effect to the re-grant order

dated 2 September 1972.

4] On 5 September 1985, the landlords initiated proceedings for

recovery of possession of the suit property claiming that the purchase

SKC / DSS JUDGMENT-WP-3055-91

has become ineffective, as both on the Tillers' day, the landlady was

admittedly a widow and in terms of Section 32F of the Tenancy Act,

since the tenants had not issued notice/intimation for purchase

within period of two years from the date of demise of the widowed

landlady, the purchase under Section 32G of the Tenancy Act had

been rendered in effective and the suit property was consequently

required to reverted to the landlords.

The Tahsildhar by judgment and order dated 30 October 1986

upheld the contention of the landlords and declared purchase to be

ineffective under Section 32F of the Tenancy Act. The tenants appeal

was dismissed by the SDO by the judgment and order dated 30 June

1987. The SDO, apart from the provisions contained in Section 32F

of the Tenancy Act, invoked the provisions of Section 32O of the

Tenancy Act to hold in favour of the landlords. The revision

application instituted by the tenants was dismissed by the MRT by

judgment and order dated 4 December 1990, but the matter was

remanded to the Tahsildar for enquiry under Section 32P of the

Tenancy Act. Hence, the present petition.



           6]       Rule and ad-interim stay in terms of prayer clause (c) were 








     SKC / DSS                                                               JUDGMENT-WP-3055-91

granted on 16 July 1991. During the pendency of the petition, from

time to time, the orders were made granting leave to bring legal

representatives of the respective parties on record.

7] Mr. S.G. Karandikar, learned counsel for the Petitioners-

tenants, made the following submissions in support of this petition:

a] The provisions of Section 32O of the Tenancy Act apply to the

tenancy created by the landlords after Tillers' day. The said provision

does not apply to tenancy which was already existing on the Tillers'

day, but the purchase was postponed, either on account of the

provisions contained in Section 32F or on account of the provisions

of the Watan Abolition Act. Relying upon the decision of this Court in

case of Pradeeprao @ Virgonda Shivgonda Patil Vs. Sidappa Girappa

Hemgire since deceased through his heirs and others1, it was contended

that the provisions contained in Section 32O of the Tenancy Act do

not apply to the land which stands re-granted to a watandar on the

payment of occupancy price.

b] That the provisions of the Tenancy Act, including in particular

the provision contained in Section 32 to 32R of the Tenancy Act were

not at all applicable to the suit property by virtue of Section 88(1)

and 88CA as on Tillers' day, on the appointed day, or for that matter 1 2004(3) Mh.L.J. 75

SKC / DSS JUDGMENT-WP-3055-91

on the date of demise of widowed landlady. The provisions of the

Tenancy Act became applicable to the suit property only on 2

September 1972, i.e., the date of re-grant of the suit property to the

landlords. On the said date, since none of the landlords were

disabled, the provisions of Section 32-F of the Tenancy Act were not

attracted. By the operation of law, i.e., the provisions contained in

Section 32 and 32-R of the Tenancy Act, the suit property stood

vested in the tenants and the tenants became the deemed purchasers

in respect thereof. Thereafter, even the authorities under the Tenancy

Act lacked jurisdiction to divest the tenants from their rights to

purchase the suit property or order restoration of the suit property to

the landlords;

c] The Authorities under the Tenancy Act have grossly failed to

appreciate the scope and import of the provisions of the Tenancy Act

as also the Watan Abolition Act and consequently the impugned

judgment and orders are in excess of jurisdiction. Even the findings

of fact, particularly on the aspect of payment of occupancy price are

vitiated by perversity. There is no material on record to establish

that occupancy price under the Watan Abolition Act was paid by the

landlord before the demise of the widowed landlady on 29 January

1972. For all these reasons, the impugned judgment and orders are

SKC / DSS JUDGMENT-WP-3055-91

required to be set aside.

8] Mr. Patwardhan, the learned counsel for the landlords at the

outset, contested the contentions made by and on behalf of the

tenants. He submitted that provisions of all Watan Abolition Acts

are pari materia to each other. Relying upon the decision of the

Single Judge of this Court in the case of Dhondi Vithoba Koli vs.

Mahadeo Dagdu Koli & Ors.2 and the decision of the Division Bench in

the case of Laxmibai Sadashiv Date vs. Ganesh Shankar Date 3, he

submitted that re-grant of land to a former Watandar on his

application, is automatic and effective from the appointed date

prescribed under the Act. On such basis, Mr. Patwardhan submitted

that the Tenancy Act became applicable to the suit property with

effect from 1 January 1963. On this date, admittedly, the landlady

was widowed and therefore, under the provisions of Section 32F, the

statutory right of purchase stood postponed. The disabled landlady

expired on 9 January 1972. Within period of two years from the

date of such demise, admittedly, notice / intimation as contemplated

by Section 32F of the Tenancy Act was never given by the tenants.

The purchase therefore was rendered ineffective and the landlords

2 AIR 1973 Bom. 323 3 AIR 1977 Bom. 350

SKC / DSS JUDGMENT-WP-3055-91

were consequently entitled to restoration of possession of the suit

property.

9] Mr. Patwardhan further submitted that even assuming that the

provisions of the Tenancy Act became applicable to the suit property

after the re-grant of the property to the landlords, it is to be noted

that the formal order of re-grant i.e. 2 September 1972 was hardly

relevant. What was relevant was the date of payment of the

occupancy price. In this case, the MRT, has recorded a categorical

finding that occupancy price was already paid before the re-grant

order was made. There is no material on record to establish that the

notice / intimation as contemplated by Section 32F of the Tenancy

Act was given by the tenants within a period of two years from the

date of payment of occupancy price. Therefore, the Authorities not

only acted within the parameters of their jurisdictional limits, but

were further entirely right in holding that the right to purchase had

been rendered ineffective and the possession of the suit property was

required to be restored to the landlords.

10] Mr. Patwardhan however pointed out that the MRT was not

right in ordering a remand to the Tahsildar for enquiry in terms of

SKC / DSS JUDGMENT-WP-3055-91

Section 32P (2)(b) or (c) of the Tenancy Act, as in the facts and

circumstances of the present case, the same was quite unnecessary

and only prolonged the right to the landlords entitlement. For all

these reasons, Mr. Patwardhan submitted that this petition be

dismissed.

11] The rival contentions now fall for determination.

12]

In this case, there is no dispute about relationship of 'landlord

and tenant' as between the parties prior to the Tillers' day or prior to

the appointed day. There is also no dispute that the suit properties

were answering the definition of 'watan land' or 'watan property' as

defined under Sections 2(1)(l) and 2(1)(m) of the Watan Abolition

Act. Therefore, in terms of Section 88CA of the Tenancy Act nothing

contained in Sections 32 to 32R (both inclusive) was applicable to

the suit property upto the date of re-grant of the suit property to the

landlords.

13] Section 32 of the Tenancy Act, otherwise provides that on the

Tillers' day, every tenant shall, subject to other provisions of Section

32 and the provisions of the next succeeding sections, be deemed to

SKC / DSS JUDGMENT-WP-3055-91

have purchased from his landlord, free of all encumbrances

subsisting thereon, on the said day, the land held by him as a tenant,

subject to certain compliances and fulfillment of certain conditions

as specified. Section 32F of the Tenancy Act however provides that

notwithstanding anything contained in the preceding sections, which

would include, inter alia, the provisions contained in Section 32 of

the Tenancy Act, where the landlady is inter alia a widow, the tenant

shall have the right to purchase the land under Section 32 within

period of one year from the expiry of the period during which the

disabled landlord / landlady was entitled to terminate the tenancy

under Section 31. Further, in terms of Section 32F (1)(a) of the

Tenancy Act, any tenant desirous of exercising the right conferred

upon him under sub section (1), is required to give an intimation in

that behalf to the landlord and the Tribunal in the prescribed

manner and within the period specified under that sub section.

14] In effect therefore, in case where the landlady is a widow on

the Tillers' day, the tenant is required to give intimation in the

matter of exercise of right to purchase the tenanted property, within

a period of two years from the date of demise of such widowed

landlady. However, as noted earlier, since the suit property in the

SKC / DSS JUDGMENT-WP-3055-91

present case was a watan property or a watan land, the provisions

contained in Sections 32 to 32R of the Tenancy Act, were not

applicable to the suit property. In terms of the Watan Abolition Act

however, from the appointed date, all Patel Watans stood abolished

and subject to the provisions contained in Sections 5, 6 and 9 of the

Watan Abolition Act, the watan lands were resumed and rendered

subject to payment of land revenue, as if they were unalienated

lands. In this regard, brief reference to the scheme of Watan

Abolition Act would be appropriate.

15] The Watan Abolition Act was published in the Official Gazette

on 4 September 1962. Section 2(1)(a) of the Watan Abolition Act

defines the term 'appointed day' to mean the date of commencement

of the Watan Abolition Act. In the present case, the same has been

notified as 1 January 1963. Section 3 of the Watan Abolition Act

provides that notwithstanding any usage, custom, settlement, grant

or agreement or sand or any decree or order of the Court, or any

existing watan law, with effect from the appointed day,-

(a) all patel watans shall be and are hereby abolished;

(b) all incidents appertaining to the said watans (including the right to hold office and watan property and the liability to render service) shall be and are hereby extinguished;

SKC / DSS JUDGMENT-WP-3055-91

(c) subject to the provisions of Sections 5, 6 and 9, all watan lands shall be and are hereby resumed, and accordingly shall

be subject to the payment of land revenue under the provisions of the relevant Code and the rules made thereunder, as if they unalienated land:

Provided that, such resumption shall not affect the validity of any alienation of any such watan land duly made in accordance with the provisions of the existing watan law, nor shall such resumption affect the rights or interest of the

alienee thereof, or of any person claiming under or through him.

16] Section 5 of the Watan Abolition Act, provides that a Watan

land resumed under Section 3 shall, on an application therefor (in

cases not falling under Sections 6 and 9), be re-granted to the

Watandar of the watan to which it appertained, on payment by or on

behalf of the Watandar to the State Government of the occupancy

price equal to twelve times the amount of the full assessment of

such land, within the prescribed period, and in the prescribed

manner, and the Watandar shall thereupon be an occupant within

the meaning of the relevant Code in respect of any such land, and

shall be primarily liable to pay land revenue to the State

Government in accordance with the provisions of that Code and the

rules thereunder, and all the provisions of that Code and rules

relating to unalienated land shall, subject to the provisions of the

Watan Abolition Act apply to such land. Sub section (2) of Section 5

of Watan Abolition Act however provides that if there be failure to

SKC / DSS JUDGMENT-WP-3055-91

pay occupancy price under sub section (1), within the prescribed

period and in the prescribed manner, the Watandar shall be deemed

to be unauthorisedly occupying the land, and shall be liable to be

summarily evicted therefrom by the Collector, in accordance with the

provisions of the relevant Code. Sub section (3) inter alia provides

that the occupancy of the land re-granted under sub section (1) shall

not be transferable or partible by metes and bounds, without the

previous sanction of the Collector and except on payment of a sum

equal to twenty times the amount of full assessment of the land,

where it is held and used for the purpose of agriculture, and in any

other case a sum equal to fifty percent of the market value of the

land.

17] Section 6 of the Watan Abolition Act provides for re-grant of

Watan land to the authorised holder on the payment by him to the

State Government of the occupancy price mentioned in Section 5

and subject to the like conditions and consequences. Section 7 of the

Watan Abolition Act specifies that any provisions of law, usage or

practice relating to the succession of any Patel Watan, whereby

contrary to the personal law governing the parties the rule of primo-

geniture was followed and the female heirs were postponed in

SKC / DSS JUDGMENT-WP-3055-91

favour of male heirs, shall, on and from the appointed day, be void

and cease to be in force.

18] Section 8 of the Watan Abolition Act, reads thus :

"8. Application of existing tenancy law.- If any watan

land has been lawfully leased and such lease is subsisting on the appointed day, the provisions of the relevant tenancy law shall apply to the said lease, and the rights and liabilities of the holder of such land and his tenant or tenants shall, subject

to the provisions of this part, be governed by the provisions of that law.

Provided that, for the purposes of application of the provisions of the relevant tenancy law in regard to the

compulsory purchase of land by a tenant, the lease shall be deemed to have commenced from the date of the re-grant of the land under Section 5 or 6 or 9, as the case may be."

19] In terms of Section 8 therefore, if any Watan land had been

lawfully leased and such lease was subsisting on the appointed day,

the provisions of the relevant tenancy law shall apply to the said

lease, and the rights and liabilities of the holder of such land and his

tenant or tenants, shall, subject to the provisions of this part, be

governed by the provisions of that law. Provided that, for the

purposes of application of the provisions of the relevant tenancy law

in regard to the compulsory purchase of land by a tenant, the lease

shall be deemed to have commenced from the date of the re-grant of

SKC / DSS JUDGMENT-WP-3055-91

the land under Section 5 o4 6 or 9 as the case may be. For the

purposes of Section 8, the expression 'land' shall have the same

meaning as is assigned to it in the relevant tenancy law. Section 2(1)

(h) of the Watan Abolition Act has defined and expression 'relevant

tenancy law' and in the present case the same would mean the

Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act).

20] From the respective schemes of the Tenancy Act as also the

Watan Abolition Act, it is quite clear that the provisions of the

Tenancy Act will apply to the suit property and in terms of proviso to

Section 8 of the Watan Abolition Act, the provisions of the Tenancy

Act in regard to compulsory purchase of land by the tenant, the lease

shall be deemed to have commenced from the date of re-grant of

land under Section 5 or 6 or 9 as the case may be and the Watan

Abolition Act. Therefore, in the facts and circumstances of the

present case, it is crucial to determine 'the date of re-grant' of the suit

property in favour of the landlords.

21] In the present case, the MRT, relying upon the provisions

contained in Section 32O of the Tenancy Act has held against the

tenants. Section 32O of the Tenancy Act provides that in respect of

SKC / DSS JUDGMENT-WP-3055-91

any tenancy created after the Tillers' day, notwithstanding any

agreement or usage to the contrary, a tenant cultivating personally

shall be entitled within one year from the commencement of such

tenancy to purchase from the landlord the land held by him or such

part thereof as will raise the holding of the tenant to the ceiling area.

Sub section (1)(A) of Section 32O of the Tenancy Act provides that a

tenant desirous of exercising the right conferred upon him under

sub section (1), shall give an intimation in that behalf to the

landlord and the Tribunal in the prescribed manner and within the

periods specified in that sub section. Sub section (2) to Section 32O

of the Tenancy Act provides that the provisions of Section 32 to 32N

(both inclusive) and of Sections 32P, 32Q and 32R in so far as they

may be applicable, shall apply to the purchase of the land by a

tenant under sub section (1). The essential pre-condition for

applicability of the provisions of Section 32O of the Tenancy Act is

that the tenancy must have been created after the Tillers' day i.e. 1

April 1957.

22] The MRT has held that tenancy in the present case was

created much after the Tillers' day, since, on the Tillers' day, the

provisions of the Tenancy Act were not applicable to the suit

SKC / DSS JUDGMENT-WP-3055-91

property, as the suit property was watan land or watan property. The

MRT, has obviously erred in the view which it has taken. There is no

factual dispute that the tenancy in respect of the suit property was

created much prior to the Tillers' day. By virtue of the provisions

contained in Section 88CA, all that has happened is that the

provisions contained in Section 32 to 32R (both inclusive) of the

Tenancy Act, were inapplicable to the suit property, since, the suit

property was watan property or watan land. In terms of the Watan

Abolition Act however, the watans were abolished and eventually the

suit property was re-granted to the landlords. On and from such re-

grant, the provisions of the Tenancy Act, in its full vigour became

applicable to the suit property. Such application, by operation of

law, was not the same as creation of tenancy by the landlord after

the Tillers' day. The MRT was therefore in clear error in applying the

provisions of Section 32O of the Tenancy Act to the facts and

circumstances of the present case.

23] This Court, in the case of Pradeeprao Patil (supra) in the

precise context of the provisions contained in the Tenancy Act and

Section 8 of the Watan Abolition Act has held that the provisions

contained in Section 32O of the Tenancy Act have no application to

SKC / DSS JUDGMENT-WP-3055-91

tenancy created in respect of Watan land prior to 1 April 1957. In

the facts and circumstances of the said case, occupancy price was

paid on 30 December 1965 and the land stood re-granted to the

Watandar. This Court however did not accept the contention that

this would mean that the new lease was created in favour of the

tenant on 30 December 1965 and that the provisions contained in

Section 32O of the Tenancy Act are applicable for such reason.

24]

This Court, in the case of Pradeeprao Patil (supra) relied upon

its earlier decision in the case of Shrawan Ganpat Fukate vs.

Shantabai Patil & Anr.4, in which at paragraph 7, it is observed thus:

"(7) I have to carefully consider the precise meaning of the

words in the provision: "for the purpose of application of the provisions of the relevant tenancy law in regard to the

compulsory purchase of land by a tenant, the lease shall be deemed to have commenced from the date of the re-grant of the land under Section 5, or 6 or 9, as the case may be". The key words are "the compulsory purchase of land by a tenant".

If we turn to the Bombay Tenancy and Agricultural Lands Act in general and Section 32 to Section 32B in particular, we get a fairly good idea about the scheme under which the tenants of agricultural lands become the purchasers and the prescribed machinery provides for fixation of price of the land.

In the whole scheme of purchase of land by tenant, only Section 32 deals with compulsory purchase of land by tenant within the meaning of the proviso to Section 8 of the M.R.P.

(Abolition of Offices) Act, 1962. By contrast Section 32 (O) confers only an option on a tenant when the tenancy is created after the Tillers' Day to exercise the right to purchase the land. If this is the clear legal position, then the lease 4 Special Civil Application No. 531 of 1973 decided on 23.11.1977.

SKC / DSS JUDGMENT-WP-3055-91

should be deemed to have commenced from the date of the regrant and the date of regrant should be read as the Tillers'

Day instead of the first day of April 1957. Once effect is given to the deeming date in this manner, then all the relevant provisions of the Tenancy Act in general and Sections 32 to

32R in particular will apply to the facts of the case."

(emphasis supplied).

25] In the case of Kallawwa Shattu Patil & Ors. vs. Yellappa

Parashtram Patil5, once again this Court was called upon to examine

point in issue and has held that when Watan land was lawfully

leased by the landlord in favour of the tenant much prior to 1 April

1957 and the said lease was subsisting on the appointed date (1

January 1963), the question of creating fresh tenancy by the

landlord does not arise. The Court proceeded to observe that since

the tenancy was not created after 1 April 1957, the provisions of

Section 32O of the Tenancy Act obviously will have no application.

The Court proceeded to explain the purport of Section 8 of the

Watan Abolition Act and observed thus :

"(7) The Watan land was lawfully leased by the landlords, i.e. the petitioners and Respondent No. 2, in

favour of the 1st Respondent-tenant much prior to 1st April 1957 and the said lease was subsisting on the appointed day. The 1st Respondent was lawfully cultivating the land bearing R.S.N.182/4 throughout.

Practically all the provisions of the tenancy Act became applicable to the lease forthwith. Merely the date of compulsory purchase and fixation of purchase price were

5 1992 Mh. L. J. 34

SKC / DSS JUDGMENT-WP-3055-91

postponed by Statute, i.e. by operation of law up to the date or re-grant. In other words, the provisions for

implementation of compulsory purchase of the land contained in Section 32G of the Tenancy Act could not be availed of by the Respondent No. 1 until the date of re-

grant of the said land. In my Judgment, the landlords did not create any fresh tenancy in favour of Respondent No. 1 after 1st April 1957 and Section 32-O of the tenancy Act can have no application to such a case. Section 32-O of

the Tenancy Act cannot apply to a case where the land was already leased by the landlords in favour of the tenant prior to 1st April 1957 and the said lease was subsisting on 1st April 1957 and it has subsisted

throughout. The proviso to Section 8 of the Patels Abolition Act creates a statutory legal fiction for an

extremely limited purpose, i.e. for the purpose of fixing of purchase price in respect of statutory purchase. For the said limited purpose, the land is deemed to have been

leased from the date of re-grant. It does not follow therefrom that the landlords have created a lease in 1957 from the re-grant. The old lease never came to an end. New contract of lease was never arrived at. Deemed date of commencement of pre-existing lease for the limited

purpose set out in the proviso to Section 8 of the Patels

Abolition Act does not and cannot bring the case within the ambit of Section 32-O of the Tenancy Act. The condition precedent prescribed by Section 32-O of the Tenancy Act for its applicability is not satisfied in this

case. In my judgment, the Tribunal has rightly held that Section 32-O of the Tenancy act is not applicable to this case and the 1st Respondent-tenant is straightway entitled to invoke the provisions of Section 32-G of the Tenancy Act and move the authorities for fixation of purchase price

without serving any notice on the landlords in respect of exercise of his right to purchase the said land. The 1st Respondent has repeatedly expressed his intention to make the statutory purchase."

(emphasis supplied).

            26]     In view of the aforesaid legal position, as well as the facts and 







     SKC / DSS                                                              JUDGMENT-WP-3055-91

circumstances of the present case, it is clear that the provisions of

Section 32O of the Tenancy Act had no application. The MRT, to the

extent it has held against the tenant by applying the provisions of

Section 32O of the Tenancy Act, has obviously exceeded jurisdiction.

The view taken by the MRT, is in clear conflict with the decision of

this Court in the case of Pradeeprao Patil (supra), Shrawan Fukate

(supra) and Kallawwa Patil (supra).

27]

Mr. Karandikar, as noted earlier, has submitted that the suit

property was re-granted to the landlords on 2 September 1972, in

terms of the specific order of re-grant. On this date, he submits that

the widowed landlady had already expired i.e. on 29 January 1972.

The legal representatives who succeeded her, were not disabled

landlords in terms of Section 32F of the Tenancy Act. Therefore, the

Tenancy act, in all its vigour became applicable to the suit property

with effect from 2 September 1972. In terms thereof, the tenants

acquired an indefeasible right to purchase the suit property and the

rights of the landlords to the suit property stood divested from the

said date itself.



            28]     Mr.   Patwardhan,   the   learned   counsel   for   the   landlords 







     SKC / DSS                                                                JUDGMENT-WP-3055-91

however submitted that the regrant took effect on the appointed

day i.e. 1 January 1963. On the said date, the landlady was

admittedly a widow and therefore a disabled landlady in terms of

Section 32F of the Tenancy Act. Within a period of two years from

the date of her demise i.e. on 29 January 1972, the tenants did not

issue the necessary intimation in terms of Section 32F of the Tenancy

Act. Therefore, the purchase was rendered ineffective and the suit

property to be reverted to the landlords.

29] Any case and without prejudice, Mr. Patwardhan submitted

that the date of formal order of re-grant i.e. 2 September 1972 was

clearly irrelevant but what was relevant was the date of payment of

occupancy price by the landlords. In this case, the occupancy price

was paid during the lifetime of the widowed landlady. This position

is accepted by the MRT in paragraph 8 of the impugned judgment

and order. Therefore, the provisions of Section 32F of the Tenancy

Act were applicable and since, the terms thereof were admittedly not

fulfilled by the tenants within prescribed period of two years from

the date of demise of the widowed landlady, the purchase was

rendered ineffective. In support of the submission that the re-grant

takes effect on the appointed day, Mr. Patwardhan, as noted earlier,

SKC / DSS JUDGMENT-WP-3055-91

has placed reliance upon the decision of this Court in the case of

Dhondi vs. Mahadeo (supra) and Laxmibai Date (supra).

30] Therefore, now the crucial issue is the precise date of re-grant

of the suit property to the landlords. Section 3 of the Watan

Abolition Act provides that from the appointed day all Patel Watans

stand abolished and subject to provisions of Sections 5, 6 and 9, all

watan lands shall be and are hereby resumed. Section 5 of the

Watan Abolition Act provides that a watan land resumed under

Section 3 shall, on an application therefor (in cases not falling

under Sections 6 and 9), be re-granted to the watandar, on the

payment by or on behalf of the watandar to the State Government,

the occupancy price as prescribed, within the prescribed period and

in the prescribed manner.

31] In the case of Pradeeprao Patil (supra), the occupancy price in

respect of the suit land was paid by erstwhile watandar on 30

December 1965 within the prescribed period. This Court has held

that on the happening of that event, the landlord being watandar, by

operation of law, the watan land stood re-granted in his favour on

and from that date itself. On payment of occupancy price by and on

SKC / DSS JUDGMENT-WP-3055-91

behalf of the watandar in the prescribed period, the tenure is

deemed to have been converted into Rayatwari tenure on the same

date. The issuance of order of re-grant of land would be mere an

administrative or ministerial formality. The re-grant takes effect

immediately on payment of occupancy price by or on behalf of

watandar to the State Government within the period prescribed by

virtue of Section 5 of the Watan Abolition Act. This decision

suggests that the crucial date for re-grant is the date of payment of

the occupancy price and not the date on which any formal

administrative or ministerial order for re-grant came to be made.

32] In the case of Dhondi vs. Mahadeo (supra) there is an

observation that under Section 4(3) of the Bombay Inferior Village

Watans Abolition Act 1959 (1959 Act), the watan land is to be

resumed subject to the condition that if the watandar pays

occupancy price within the prescribed period and in the prescribed

manner, then such person becomes occupant of the land from 20

January 1959, the appointed day under the 1959 Act. However, this

was not the real issue involved in the said case. The real issue was

whether the abolition of watan and its regrant merely changes the

tenure or character of the watan land or whether it also affects other

SKC / DSS JUDGMENT-WP-3055-91

legal incidents concerning the property as per the applicable

personal law. The learned Single Judge of this Court, in the case of

Dhondi vs. Mahadeo (supra) took the view that the 1959 Act merely

changes the tenure but does not affect other legal incidents of the

property as per the applicable personal law.

33] The aforesaid view of the learned Single Judge was doubted

by the Division Bench of this Court in the case of Kalgonda Babgonda

vs. Balgonda Kalgonda6. But the view in Kalgonda vs. Balgonda

(supra) was itself doubted by yet another Division Bench in the

case of Laxmibai Date vs. Ganesh Date (supra), which, therefore,

made a reference to the Full Bench. In the judgment and order by

which reference was made, there is an observation that under the

provisions of the Bombay Merged Territories Miscellaneous

Alienations Abolition Act 1955 (1955 Act) the regrant once made

will relate back to the appointed day. In the decision of the Full

Bench however, there are no observations on the aspect with which

we are concerned, namely, whether the regrant once made, relates

back to the appointed day. The Full Bench has held that the view

taken by the learned Single Judge in the case of Dhondi vs. Mahadeo

(supra) is to be preferred over the view in the case of Kalgonda vs. 6 (1975) 78 Bom. L.R. 720

SKC / DSS JUDGMENT-WP-3055-91

Balgonda (supra). This is again in the context of the main issue

involved in the said decisions as to the effect of abolition and the

regrant upon the legal incidents of the property as per applicable

personal law.

34] The question which therefore arises is whether the decisions in

the case of Dhondi vs. Mahadeo (supra) and Laxmibai Date (supra)

are authorities for the blanket proposition that under the Watan

Abolition Acts, in every case and for every purpose the date of

regrant once made will relate back to the appointed day. Mr.

Patwardhan asserts that this is so, whereas, Mr. Karandikar contests

this provision, by emphasizing that both the 1955 Act and the 1959

Act which were considered in the cases of Dhondi vs. Mahadeo

(supra) and Laxmibai Date (supra) were not pari materia with the

provisions contained in the Watan Abolition Act, with which we are

presently concerned. In particular, Mr. Karandikar pointed out that

the provisions contained in Section 8 of the Watan Abolition Act

with which we are concerned, are not to be found in the 1955 and

1959 Acts, which were the subject matters of the decisions in the

case of Dhondi vs. Mahadeo (supra) and Laxmibai Date (supra).

     SKC / DSS                                                                     JUDGMENT-WP-3055-91



            35]     In the decisions of Dhondi vs. Mahadeo (supra) and Laxmibai

Date (supra) the interplay between the provisions of the Tenancy Act

and the concerned Watan Abolition Acts, was not an issue. Although,

broadly the scheme of all Watan Abolition Acts may be similar,

there is significant difference between the 1955 Act and 1959 Act

on one hand and the provisions contained in the Watan Abolition Act

with which we are presently concerned. Unlike in the 1955 Act and

the 1959 Act, the Watan Abolition Act with which we are concerned,

contains a special provision in the matter of application of existing

tenancy laws in form of Section 8 of the Watan Abolition Act. This

provides that if any watan land has been lawfully leased and such

lease is subsisting on the appointed day, then the provisions of the

relevant Tenancy law will apply to the said lease and the rights and

liability of the holder of such land and his tenant shall, subject to

the provisions of this part, be governed by the provisions of that law.

The proviso, which is really the distinguishing feature, provides that

for the purposes of applications of the relevant Tenancy law in

regard to compulsory purchase of land by the tenant, the lease shall

be deemed to have commenced from the date of regrant of land

under Sections 5, 6 or 9 as the case may be. In view of such

distinguishing feature, it cannot be said that the decisions in the case

SKC / DSS JUDGMENT-WP-3055-91

of Dhondi vs. Mahadeo (supra) and Laxmibai Date (supra) are

decisions on legislations entirely pari materia with the provisions

contained in the Watan Abolition Act, with which we are concerned.

36] Further, as noted earlier, the real issue in both Dhondi vs.

Mahadeo (supra) and Laxmibai Date (supra) was not whether the

regrant relates back to the appointed day but the real issue was

whether the abolition of watan and regrant merely changes the

tenure of the property or whether it also affects all legal incidents in

the context of applicable personal law. In contrast, the decision of

this Court in the case of Pradeeprao Patil (supra) was in the precise

context of the Watan Abolition Acts with which we are concerned

and its interplay with the provisions of the Tenancy Act. In such

circumstances, it is not possible to place reliance upon the decisions

in the case of Dhondi vs. Mahadeo (supra) and Laxmibai Date

(supra), in order to deduce the blanket proposition, which Mr.

Patwardhan seeks to advance in the present case.

37] In the case of Union of India vs. Amrit Lal Manchanda & Anr.7,

the Hon'ble Apex Court has cautioned against placing reliance upon

precedents without discussing as to how the factual situation fits in 7 (2004) 3 SCC 75

SKC / DSS JUDGMENT-WP-3055-91

with the fact situation of the decision on which reliance is placed.

The Apex Court has cautioned that the observations of Courts are

neither to be read as Euclid's theorems nor as provisions of the

statute and that too taken out of their context. The observations

must be read in the context in which they appear to have been

stated. The judgments of the Courts are not to be construed as

statutes. To interpret words, phrases and provisions of a statute, it

may become necessary for judges to embark into lengthy

discussions but the discussion is meant to explain and not to define.

Judges interpret statutes, they do not interpret judgments. They

interpret words of statutes, their words are not to be interpreted as

statutes. Circumstantial flexibility, one additional or different fact

may make a world of difference between conclusions in two cases.

Each case depends on its own facts and a close similarity between

one case and another is not enough because even a single significant

detail may alter the entire aspect. Precedent should be followed only

so far as it marks the path of justice, but you must cut the dead

wood and trim off the side branches else one might be lost be in

thickets and branches.

38] Applying the decision of Pradeeprao Patil (supra), it will have

to be further held that the right of pre-existing tenant to purchase

SKC / DSS JUDGMENT-WP-3055-91

the tenanted property is to be considered on the date of payment of

occupancy price by the landlord / watandar and the date upon

which some formal order of regrant may have been made, is quite

irrelevant for the purpose. The issuance of formal order of regrant,

is only an administrative or ministerial measure. Therefore, what

assumes relevance is the date on which the landlords, in the present

case, have paid the occupancy price in respect of the suit property.

39]

From the material placed on record, it is not possible to

determine this date. The MRT in its judgment and order dated 4

December 1990 has observed that the occupancy price was already

paid before the regrant order was made. There is however, no

specific material to sustain such finding. That apart, such

observation is really neither here nor there. If the occupancy price

was paid before the demise of the landlady i.e. before 29 January

1972, then obviously, the provisions of Section 32F of the Tenancy

Act will apply in all their vigour. Since it is admitted that the tenants

have not issued any notice / intimation as contemplated by Section

32F, the tenants right to purchase the suit property would be

rendered ineffective. The impugned judgments and orders, will then,

have to be upheld. However, if the occupancy price has been paid by

SKC / DSS JUDGMENT-WP-3055-91

the landlords after the demise of the widowed landlady i.e. between

29 January 1972 and 2 September 1972, then the view taken in the

impugned judgments and orders will have to be upset. This is

because on the date of payment of such occupancy price, there is no

material to indicate that any of the landlords were disabled

landlords for the provisions of Section 32F of the Tenancy Act to

apply. There is however, no categorical finding upon this crucial

aspect with regard to the precise date of payment of occupancy price

by the landlords.

40] In the aforesaid situation, the interests of justice would require

a remand of the matter to the Tahsildar for determining the precise

date upon which the landlords have paid the occupancy price under

the provisions of the Watan Abolition Act with which we are

concerned. The impugned judgments and orders had, in any case,

remanded the matter to the Tahsildar for the purposes of enquiry

under Section 32P of the Tenancy Act. It is necessary, in the facts and

circumstances of the present case that the Tahsildar also inquires

into the crucial issue concerning the date upon which the landlords

have paid the occupancy price under the provisions of the Watan

Abolition Act. If such determination is possible on the basis of the

SKC / DSS JUDGMENT-WP-3055-91

record, the Tahsildar may accept the same. If however, the records

are not very clear and the parties desire to lead evidence on this

aspect, the Tahsildar will grant the parties opportunity to lead

evidence upon this issue. If the Tahsildar comes to the conclusion

that the occupancy price, in the present case, was paid by the

landlords before the demise of a widowed landlady, then obviously

the provisions of Section 32F of the Tenancy Act will apply. There

will arise no necessity then to interfere with the impugned

judgments and orders, which shall deemed to have been confirmed.

The Tahsildar shall then, consistent with the impugned judgments

and orders, proceed with the enquiry in terms of Section 32P of the

Tenancy Act. If however, the Tahsildar comes to the conclusion that

the occupancy price in the present case was paid by the landlords

after the demise of the widowed landlady, then the proceedings

initiated by the landlords on 5 September 1985 will have to be

dismissed and the impugned judgments and orders shall stand set

aside.

41] This petition is therefore disposed of with the following

order / directions:

     SKC / DSS                                                                   JUDGMENT-WP-3055-91



            (A)     The   proceedings   initiated   by   the   landlords   bearing

No.32P/Jainyal-47/85 are remanded to the Tahsildar, Kagal;

(B) The Tahsildar is directed to determine the precise date upon

which the landlords have paid the occupancy price in respect of the

suit property under the provisions of the Watan Abolition Act;

the records and if the parties are desirous of leading evidence,

permit them to do so;

(D)

If the Tahsildar ultimately determines that the occupancy price

was paid by the landlords during the lifetime of the widowed

landlady, the Tahsildar shall declare that the tenants right to

purchase the suit property is rendered ineffective and proceed with

enquiry under Section 32P of the Tenancy Act as directed by the