High Court
Legal Reasoning
903-wp-9795-2013 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9795 OF 2013WITHCIVIL APPLICATION NO.1012 OF 2024Kundlik s/o Mahadu Dighe (Died)Through his legal heirs1. Vasantrao Kundalik Dighe through GPA holderAge: 70 years, occ. Agril,2. Vishnupant S/O Kundlik Dighe,Age: 65 years, Occu:Agril.3. Shamrao S/o Kundlik Dighe,Age: 60 years, Occu:Agril.4. Smt. Lilabai Balasaheb Dighe,Age: 64 years, Occu: Household,Petitioner Nos.2 to 4 R/o Kolhar (Bk),Tq. Rahata, District: Ahmednagar.5. Pushpa Nivrutti Gunjal,Age: 58 yrs, Occu: Household,R/o. Rahuri Factory, Tq. Rahata,District: Ahmednagar....PetitionersVERSUS1. Tulshiram s/o . Dhondiba ShindeAge 75 yrs. Occu. Agri.2. Dada s/o Dhondiba ShindeAge 80 yrs, Occ. Agri.,Both R/o. Kadit, Tq. ShrirampurDist. Ahmednagar.3. The Tahsildar ShrirampurTahsil Office, Tq. ShrirampurDist. Ahmednagar ...Respondents ...Mr. Sarang P. Joshi, Advocate for Petitioner.Mr. S.B. Kadu, Advocate for Respondent No.1.Mrs. R.R. Tandale, AGP for Respondent No.3/State. 903-wp-9795-2013 judg.odt(2) ... CORAM : S.G. MEHARE, J.DATED : 09.02.2024ORAL JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.2.The petitioners are the legal heirs of the original tenant,and the respondents are the legal heirs of the original landlord. Thelease was created after the tillers' day. The respondent did not denythat the suit land was leased for 99 years. It is also not disputed thatthe original landlord never applied for restoration of the land. Theoriginal tenant continued tenancy as per the lease agreement. Therespondents had applied before the Tahsildar by an application underSections 32-O and 32-P of the Maharashtra Tenancy and AgriculturalLands Act, 1948 (for short 'the Act').3.The contention of the respondent before the Tahsildarwas that the tenant ought to have purchased the land within a yearfrom the commencement of the tenancy. No purchase notice wasgiven to the landlord. Hence, his right to purchase had ceased.Therefore, the petitioner is liable to be evicted, and the land berestored to them. The petitioner was holding the land more than theceiling limits. Therefore also, he is not entitled to purchase the suitland. 903-wp-9795-2013 judg.odt(3)4.The petitioners have opposed the application, contendingthat the lease should have been terminated by following the dueprocedure of law. Respondent No.2 was the attesting witness to thesaid lease deed. He never took any action. Since the original tenantdid not terminate the tenancy, legal heirs have no right to seek reliefunder Section 32-P of the Act. Claim after 32 years is time-barred.The respondents ought to have filed the petition within a reasonableperiod. Therefore, the right to claim the restoration of the landbecame inexecutable. The respondents ought to have exercised thepowers under Section 29 of the said Act within two years. They neverapplied for restoration of possession. Hence, they have no right toclaim the possession. He has argued that the lease deed was not intheir possession at the time of the trial before the Court. Hence, theymay be allowed to produce additional evidence of the said lease deed.To bolster his arguments, he relied on the case of Arvind DeochandMehta and others Vs. Genu Tukaram Bhoir, 2009 (3) Bom.C.R. 858and Sambhaji Shripati Bankar (Deceased through L.Rs.) Vs. KeshavRangnath Ekbote (Deceased through L.Rs.), 2010 (3) ALL MR 854.He prayed to allow the petition and quash the impugned orders.5.Learned counsel for the respondents submit that since thetenant did not exercise the power to purchase the tenanted landwithin a year as provided under Section 32-O of the Act, they have noright to continue with the possession. Their right to continue as a 903-wp-9795-2013 judg.odt(4)tenant ceases soon after a year of the commencement of the lease. Healso argued that the petitioner has more land than the requiredholding. The landlords/respondents have lesser land. The petitionershave brought a new case before this Court. He relied on the case ofRamchandrahashadalvi (Deceased) Through Lrs. Vs. D. Patwardhan,1999 AIR (SC) 2039, Sanganbasappa Channappa Manikhshetti Vs.Vishwanath Shivlingappa Birajdar and others, 2003(2) Mh.L.J. 587,Motiram Jagannath Bhoir Vs. Rajaram Gopal Mhaskar and Others,2005 (1) Mh.L.J. 169 and lastly he relied on the case of Babu VithuGaikwad (Dead) by L.Rs. Vs. Chintaman Sadashiv and Ors, 2007 (9)SCC 632. He prayed to dismiss the petition. 6.In reply, learned counsel for the petitioners argued thatunder Section 40 of the Act, the tenancy is heritable. Therefore, thepetitioners have every right to protect their rights. He has tried toargue that the rule of succession would not apply to the landlord. Heis emphasizing that since the father of the respondents did not initiatethe proceeding for eviction, the respondents have lost their rights torestore the possession. He also argued that the case laws relied uponby the respondents’ counsel are on the different facts and provisionsof law, particularly on the tillers' day. Hence, do not apply to the caseat hand.7.Having regard to the argument of the respective counsels,the following points arise for consideration: 903-wp-9795-2013 judg.odt(5)(i)Does the application for restoration of possession of thetenanted land under Section 32-P of the Tenancy Act is barred bylimitation being not filed within a reasonable period?(ii)Does Section 32-O not apply to this case?(iii)Do the respondents not entitled to file an application forrestoration of the possession being legal heirs of original landlord,who had not taken any steps during his lifetime?(iv)Was it essential to terminate the tenancy under the Transfer ofProperty Act?8.There is no quarrel that the landlord-tenant relationshipwas created after the tillers' day. After the Act , every agreement oflease of the agricultural lands is brought under the said Act. Theprotection was granted to the tenants who were cultivating the landson the tillers' day. The Act has also taken care of the tenancy createdafter the tillers' day. There is also a concept of contract tenancy.Section 3 of the Act provides that the provisions of Chapter V of theTransfer of Property Act, 1882, shall, in so far as they are, notinconsistent with the provisions of this Act, apply to the tenancies andleases of lands to which this Act applies. Section 4 of the Act providesfor the deemed tenancy. It has been provided therein that a personlawfully cultivating any land belonging to another person shall bedeemed to be a tenant if such land is not cultivated personally by the 903-wp-9795-2013 judg.odt(6)owner, subject to certain exceptions as provided under the Act. Tenantincludes a person who is deemed to be a tenant under Section 4.9.Section 32-O is relevant to the facts in issue. Hence, it isreproduced thus:"32O. (1) In respect of any tenancy created after the tillers'day 4 [by a landlord (not being a serving member of thearmed forces)] notwithstanding any agreement or usage tothe contrary, a tenant cultivating personally shall be entitledwithin one year from the commencement of such tenancy topurchase from the landlord the land held by him or such partthereof as will raise the holding of the tenant to the ceilingarea.[(1A) A tenant desirous of exercising the right conferred onhim under sub-section (1) shall give an intimation in thatbehalf to the landlord and the Tribunal in the prescribedmanner within the period specified in that sub-section].(2) The provision of section 32 to 32N (both inclusive) and ofsections 32P, 32Q, and 32R in so far as they may be applicableshall apply to the purchase of the land by a tenant under sub-section (1)."10.The Section says that notwithstanding any agreement orusage to the contrary, where the tenancy is created after tillers' day,the tenant has a right to purchase the land. However, such a rightshould be exercised within a year from commencement of suchtenancy. It has further been provided therein that such person isentitled to purchase the land held by him or such part thereof as willraise the holding of the tenant to the ceiling area. In other words, this
Decision
903-wp-9795-2013 judg.odt(7)section confers a right on the tenant after the tillers' day, to purchasethe land not more than the ceiling limit. Further, where such tenant isdesirous to purchase the land, he has to give an intimation in thatbehalf to the landlord and the Tribunal in the prescribed mannerwithin a period of a year.11.Admittedly, the father of the petitioners did not exercisehis right under Section 32-O of the Act. Failure to exercise the powerhas a consequence as provided under Section 32-P of the said Act. Itprovides that where the right to purchase the land as provided underSection 32-O has not been exercised within a period prescribedtherein, the Tribunal may suo motu or on an applicationmade on this behalf hold the inquiry and direct that land shall bedisposed of by directing to evict the tenant summarily or to surrendersuch land under Section 15. If such land cannot be surrendered asprovided under Section 15, the certain provisions have been madehow such lands should be disposed of.12.The Hon'ble Supreme Court in the case ofRamchandrahashadalvi (supra) held that where the tenant was notwilling to purchase the land and the statutory sale, the landlordwould be entitled to take possession of such land under Section 32-Pof the Act. This Court, in the case of Sanganbasappa (supra), dealtwith the provisions of Section 32-O and 32-P of the Act, and held thatwhere tenant is inducted after the tillers' day, then by virtue of section 903-wp-9795-2013 judg.odt(8)32-O of the Act, he is obliged to give intimation regarding hisintention to purchase the suit lands within the statutory period. Theconsequence of such failure is also provided in section 32-O that aright to purchase becomes ineffective. In such case, it will be open tothe landlords to recover possession of the suit lands by takingrecourse to the provisions of section 32-P of the Act. It is theconsistent view on the failure of the tenant to purchase the land asprovided under Section 32-O of the Act.13.Learned counsel for the petitioners tried to put a casethat since there was a lease of 99 years, the landlord had a right torecover possession under Section 29 of the Act. Reading that section,the Court is of the view that the provisions of that section arealtogether different and not relevant to the facts in issue. The law laiddown by the Hon'ble Supreme Court and by this Court on thequestion of right of tenant under Section 32-O and effect of his failureto exercise the power have been crystallized in clear terms that oncethere is an agreement of lease after the tillers' day, the tenant shouldexercise his power to purchase the land within a year and if not thelandlord gets the right to seek the restoration of the land.14.This Court, in the case of Arvind (supra), has dealt withSection 32-P of the Act, which pertains to the consequences on thefailure of the tenant to exercise the right to purchase the land.Similarly, the same subject was dealt with in the case of Sambhaji 903-wp-9795-2013 judg.odt(9)(supra). In that case, this Court has considered the case of UttamMahadeo Mahale Vs. Vithal Deo and others, 1997 (4) All MR 447(SC) and observed in paragraph No.14 which reads thus :"14. Mr. Gaware further invited my attention to certainobservations in "Uttam Mahadeo Mahale Vs. Vithal Deo andothers" AIR 1997 S.C. 2695 : [1997(4) ALL MR 447 (S.C.)]. TheApex Court held that there is no specific limitation providedunder section 21 of the Bombay Mamlatdar's Court Act, 1906. Itis held that the eviction order could have been executed at anytime. This authority is hardly of any relevance in the context ofpresent case. The rejection of the previous application undersection 32-G could not be treated as an executable order for thepurpose of section 32-P and as such, it could not be assumed thatat any time, the Tribunal may take the action required undersection 32-P because there was no limitation provided for suchkind of execution. Reliance is also placed on certain observationsin "Madhukar Damodar Pawar, deceased through his heirs andlegal representatives & others v. Madan Purshottam Pandkar and( 24 ) another" 2003 (3) Bom. C.R. 291 : [2003(1) ALL MR695]. A learned Single Judge of this Court held that thelimitation was not provided for execution of eviction order undersection 21 of the Mamlatdar's Courts Act, 1906 in relation toorders under sections 31, 73 and 73-A of the BT & AL Act. Theargument of Mr. Gaware is that the proceedings under section32-P are in the form of the execution of the order because,previously, such direction was given while dropping proceedingsunder section 32-G of the BT & AL Act. It is unfortunate that thecopy of the order rendered by the Mamlatdar is not on recordand moreover only because of disposal of the proceedings undersection 32-G, the power under section 32-P could not have beeninvoked on assumption that it was to be exercised by way ofexecution of the order rendered under section 32-G of the BT & 903-wp-9795-2013 judg.odt(10)AL Act. Both the sections operate in different fields. If suchinterpretation is not adopted, it is probable that in a given case,the proceedings under section 32-G may be dropped on thepremise that the tenant was unwilling to purchase the land. Yet,the right to purchase the land may not become ineffective if helateron shows willingness to deposit the determined price undersection 32-M. The basic requirement of Section 32-P is to clearlydetermine the issue whether the right of the tenant has becomeineffective and frustrated due to his apathy to go ahead with theproposal to purchase the tenanted land or due to his default inmaking payment of the determined price. The rights of tenants,who were found in possession on the Tillers' Day, cannot belightly taken away. "15.This Court in para no.17 has observed thus :"17. By analogy, the same view can be taken in the context of theaction provided under section 32-P of the BT&AL Act. This Courtin "Gulabrao Bhaurao Kakade since deceased by L.Rs. and othersv. Nivrutti Krishna Bhilare and others" 2001(4) Mh.L.J. 31 :[2001(2) ALL MR 518], held that the powers under section 32(1)of the Bombay Prevention of Fragmentation and Consolidation ofHoldings Act, 1947 are required to be exercised withinreasonable period though no specific limitation is provided for.The absence of specific period of limitation will not give a licenceto the competent authority to initiate action at any point of timethough it has become too stale. The law does not expect keepingdemocles' sword hanging on head of any litigant for perennialperiod. For all these reasons, I have no hesitation in holding thatinstitution of such proceedings under section 32-P after about 28years was improper and barred by limitation. "16.This Court in the above case held that, the proceedingunder Section 32-P of the Act should be initiated within a reasonable 903-wp-9795-2013 judg.odt(11)period and if not, the proceeding filed after a reasonable period istime-barred.17.Section 32-P of the Act is silent about the period to takeaction to restore the land. Where the provision of law is silent on thelimitation for initiating any action or proceeding, can such provisionbe interpreted that an action or proceeding should be initiated withina reasonable period is a question? 18.Recently, the issue about the applicability of the principleof taking action in a reasonable period under Section 98 of theHyderabad Tenancy and Agricultural Lands Act, 1950 was dealt withby the Hon'ble Division Bench of this Court in the case of Ganesh s/oKachru Sonawane (Sonne) and Another Vs. Khushalrao s/o SukhdeoSable and Others in Writ Petition No.9745 of 2011 with connectedWrit Petitions dated 05.12.2023. 19.In the above case, the Hon'ble Division Bench had framedthe issue as referred to it as follows :"whether any period of limitation is applicable for preferringany application under Section 98 of Hyderabad Tenancy andAgricultural Lands Act, 1950 (hereinafter referred to as 'Act').?"20.The Hon'ble Court answered the question referred to inthe words that "no period of limitation is applicable for preferring anyapplication under Section 98 of the Act, and it is not permissible toread a reasonable time of limitation into the section." 903-wp-9795-2013 judg.odt(12)21.The answer is clear that the rule of reasonableness doesnot apply where a statutory provision does not prescribe a period oflimitation to exercise the rights conferred under such statutoryprovisions. Section 98 of the Hyderabad Tenancy Act is pari materiato Section 32-P of the Act of 1948.22. In view of the ratio laid down by the Hon'ble DivisionBench in the case of Ganesh s/o Kachru Sonawane (Sonne) (supra),the Court is of the view that the issue answered by the Division Benchwould prevail over the judgment of the learned Single Judge in thecase of Sambhaji (supra). Since the rule of taking action in areasonable period does not apply to Section 32-P of the Act theapplication of respondents could be entertained. 23.It is an argument of the learned counsel for thepetitioners that only the father of the petitioners could take action forrestoration. The respondents, being his legal heirs, have no right toinitiate the action under Section 32-P of the Act. He himself hasagreed that the tenancy rights are heritable. When the tenant dies, hisheir may continue with the tenancy. So, this rule applies mutatismutandis to the legal heirs of the landlord. The law neverdiscriminate. What one party has the rights, the another party hasalso the same rights. Hence, the arguments of the learned counsel forthe petitioners that the legal heirs/successor of the landlord have no 903-wp-9795-2013 judg.odt(13)right to exercise the powers to seek the restoration of land areunfounded.24.The law on Section 32-O and 32-P has been crystallizedby the Hon’ble Supreme Court. The issue of limitation to claim theright under Section 32-P with Section 98 of the Hyderabad Tenancyand Agricultural Lands Act, 1950 which is pari materia is no resintegra. The impugned judgments and orders of all the authoritiesbelow are legal, proper and correct and do not warrant interference.Hence, the writ petition stands dismissed.25.Rule stands discharged.26.Learned counsel for the petitioners states that he wantsto impugn this order before the Apex Court. Hence to protect theinterest, the effect and operation of this order is stayed for six weeksfrom today.27.In view of the above observations, Civil ApplicationNo.1012 of 2024 stands disposed of. (S.G. MEHARE, J.) Mujaheed//