Krishna Tatya Chavan v. Shankar Yamaji Kadam — 1981 DIGILAW 318 (BOM)

ORDER :- This petition under Article 227 of the Constitution of India raises a pure question of law in regard to the interpretation and construction of the provisions of S.8 of the Bombay Inferior Village Watans Abolition Act, 1958 and S.32G (6) of the Bombay Tenancy and Agricultural Lands Act, 1948. 2. Two agricultural lands bearing Gat Nos.71-A (S.No.35) and 71-B (S.No.34) admeasuring 18 acres and 39 gunthas and 14 acres and 12 gunthas respectively situated at village Bichukale, Taluka Koregaon, District Satara are the subject-matter of the present proceedings. It is common ground that these lands were originally Ramoshi Watan lands and governed by the provisions of the Bombay Inferior Village Watans Abolition Act, 1958 (hereinafter referred to as the Watants Abolition Act). Both these lands were originally held by one Tatya Martand Ramoshi (Chavan), predecessor-in-title of the petitioners. Tatya died some time in the year 1970 leaving behind him the son-petitioner No.1, widow-petitioner No.2 and daughter-petitioner No.3 as his heirs and legal representatives. The respondents claim to be the tenants in respect of the said lands. 3. The present proceedings arise out of an order passed by the tenancy authority under S.32-G (6) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy Act). Few more facts will be necessary to appreciate the point raised in this petition on behalf of the petitioner. The Watan under which the suit lands were held by Tatya was abolished under the Watans Abolition Act with effect from the appointed date i.e. 1-5-1959 on which date the suit lands came to be vested in the Government. Under S.32-G of the Bombay Tenancy Act the appointed date for the purposes of conferring the status of 'purchaser' was 1-4-1957. It is the case of the petitioners that on the appointed date under the Watans Abolition Act none of the respondents were in possession of the suit lands. The land bearing Gat No.71-A was cultivated by Tatya and his family with the help of Hanmant Bala on payment of wages. They further alleged that the name of respondent No.1 appears in the Record of Rights of this land only for the year 1962-63 i.e. long after the appointed date. The other land bearing Gat No.71-B was with Bapu Bhiva Mang and its possession was given through Civil Court to Tatya in 1964. They further alleged that the name of respondent No.1 appears in the Record of Rights of this land only for the year 1962-63 i.e. long after the appointed date. The other land bearing Gat No.71-B was with Bapu Bhiva Mang and its possession was given through Civil Court to Tatya in 1964. Thereafter by agreement dated December 9, 1964 Tatya gave it to respondent No.2 for Vahivat. Thus, according to the petitioners, respondent No.2 was not in possession of Gat No.71-B on the appointed date. 4. It is also common ground that after the abolition of the said Watans the lands came to be vested in the Government. On Jan. 30, 1968, all these lands were regranted to Tatya under S.5 of the Watans Abolition Act. Accordingly mutation entry was also made and certified on March 10, 1968. The name of petitioner No.1 was entered in the Record of Rights in respect of these suit lands as manager of the joint family. 5. Krishnabai Yamji Kadam, respondent No.4, to this petition, on Aug. 24, 1973 made an application to the tenancy authority under S.32-G of the Bombay Tenancy Act for fixation of purchase price on the allegation that she has become deemed purchaser of the suit lands. This application was opposed by the petitioners on several grounds contending that on the appointed date none of the respondents were tenants and therefore they are not entitled to purchase the lands under S.32-G of the Bombay Tenancy Act. They further pleaded that S.32-G is not applicable. Application is false and the same be dismissed. 6. The Additional Tahsildar and A.L.T., Koregaon by his order dated March 1, 1974 held that the respondents were the tenants of the suit lands before the order of regrant dated Jan. 30, 1958 and therefore they have become deemed purchasers under the provisions of S.32-G(6) of the Bombay Tenancy Act. Against this order three appeals were filed to the Appellate Authority. One appeal was filed by the petitioners whereas the tenants filed two separate appeals challenging the purchase price. Two appeals were filed because there were two lands cultivated by two different tenants. The Sub-Divisional Officer, Koregaon Division, Satara, by his judgment and order dated Sept. 11, 1975 dismissed all the three appeals and confirmed the order passed by the Additional Tahsildar, Koregaon. Two appeals were filed because there were two lands cultivated by two different tenants. The Sub-Divisional Officer, Koregaon Division, Satara, by his judgment and order dated Sept. 11, 1975 dismissed all the three appeals and confirmed the order passed by the Additional Tahsildar, Koregaon. Against this order, three revision applications were filed to the Maharashtra Revenue Tribunal and the learned Member of the said Tribunal by his common judgment and order dated Nov. 19, 1975 dismissed all the revision applications and confirmed the orders passed by the two authorities below. It is against these orders passed by the authorities below that the petitioners have filed this petition to this Court under Art.227 of the Constitution. 7. I am conscious of the fact that all the three authorities below have concurrently held that the provisions of S.32-G (6) of the Bombay Tenancy Act are attracted in the present case and in view of these provisions the respondents have become deemed purchasers and accordingly fixed the purchase price. But, in my opinion, all the three authorities below have completely overlooked, misread and misinterpreted the provisions of S.32-G (6) of the Bombay Tenancy Act. The question of law that has been raised in this petition by Mr. N.B. Shah, learned Advocate appearing on behalf of the petitioners, is that having regard to the provisions of S.8 of the Watans Abolition Act read with S.32-G of the Bombay Tenancy Act, the provisions of sub-sec.(6) of the Bombay Tenancy Act will not come into operation at all. S.8 of the Watans Abolition Act reads as under :- "If any Watan land has been lawfully leased and such lease is subsisting on the appointed date, the provisions of the 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 Act, be governed by the provisions of the said law." It is common ground that the Watans were abolished on 1-5-1959 and the lands vested in the Government on the said date. It is also a common ground that the suit lands were regranted in favour of Tatya under S.5 of the Watan Abolition Act pursuant to regrant order dated Jan. 30, 1968. It is also a common ground that the suit lands were regranted in favour of Tatya under S.5 of the Watan Abolition Act pursuant to regrant order dated Jan. 30, 1968. According to S.8 of the Watans Abolition Act, therefore, the possession of the respondents qua the suit lands will have to be determined on the appointed date because S.8 of the Watans Abolition Act contemplates that any Watan land which has been lawfully leased and if such lease was subsisting on the appointed date i.e. on 1-5-1959, the provisions of 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 the said Act, be governed by the provisions of the said law. All the three authorities below have completely overlooked the provisions of S.8 of the Watans Abolition Act and have also failed to determine as to whether the suit lands were lawfully leased to the respondents and whether such lease was subsisting on the appointed date i.e. 1-5-1959. All the three authorities below have come to the conclusion that since the respondents were tenants on the suit lands prior to the order of regrant they have become deemed purchasers under the provisions of S.32-G (6) of the Bombay Tenancy Act. In my opinion, this view is totally contrary to the provisions of S.8 and S.32-G (6) of the Bombay Tenancy Act. 8. Coming to the application under S.32-G (6) of the Bombay Tenancy Act it would be necessary to refer to the material provisions which have been relied upon by the authorities below for conferring the status of statutory purchasers on the respondents. The relevant portion of S.32-G (6) of the Bombay Tenancy Act reads as under:- "32-G (6). 8. Coming to the application under S.32-G (6) of the Bombay Tenancy Act it would be necessary to refer to the material provisions which have been relied upon by the authorities below for conferring the status of statutory purchasers on the respondents. The relevant portion of S.32-G (6) of the Bombay Tenancy Act reads as under:- "32-G (6). If any land which, by or under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it was not transferable was not the condition of regrant." Now, if one looks at Schedule III of the Bombay Tenancy Act, it is clear that the Watans Abolition Act 1958 is not mentioned in this Schedule III. This non-inclusion in Schedule III, in my opinion, takes away the application of the provisions of S.32-G (6) of the Bombay Tenancy Act. S.32-G (6) would come into operation in respect of such tenures which are abolished and referred to in Schedule III of the Bombay Tenancy Act. Since Watans Abolition Act, 1958 is not referred to in this Schedule III, the provisions of S.32-G (6) will have no application to the present proceedings. Moment it is held that the provisions of S.32-G (6) of the Bombay Tenancy Act are not attracted in the present case, the orders passed by the authorities below relying upon the said provisions must be quashed and set aside being bad and illegal. 9. Mr. Dilip B. Bhosale, learned Advocate appearing on behalf of the respondents could not point out to me any amendment to Schedule III of the Bombay Tenancy Act by virtue of which the provisions of Watans Abolition Act were included in the said Schedule. 9. Mr. Dilip B. Bhosale, learned Advocate appearing on behalf of the respondents could not point out to me any amendment to Schedule III of the Bombay Tenancy Act by virtue of which the provisions of Watans Abolition Act were included in the said Schedule. As stated earlier, all the three authorities below have considered the claim of the respondents as deemed purchasers on the basis that they were cultivating the suit lands as lessees prior to the order of regrant and without referring to the material fact as to whether these respondents were lawfully cultivating the suit lands as lessees on the appointed date as required under S.8 of the Watans Abolition Act. Since none of the authorities below have considered this aspect while disposing of the application of the respondents under S.32-G of the Bombay Tenancy Act, in my opinion, the matter will have to be remanded back to the Additional Tahsildar and, A.L.T. Koregaon, to consider afresh the claim of the respondents bearing in mind the provisions of S.8 of the Watans Abolition Act. If the respondents establish that the suit lands were lawfully leased to them and such lease was subsisting on the appointed date i.e. 1-5-1959 then the provisions of the Bombay Tenancy Act including the provisions of S.32-G (6) will come into operation. After ascertaining this factual aspect the Additional Tahsildar and A.L.T. shall pass the order in accordance with law. Thus, the order passed by three authorities below are quashed and set aside and the matter is remitted back to the Additional Tahsildar and A.L.T., Koregaon, to dispose of the same afresh in the light of the observations made hereinabove. The Additional Tahsildar shall give opportunity to both the parties to lead such evidence as they deem proper to prove their rival contentions. The Additional Tahsildar shall dispose of the matter as expeditiously as possible since this matter is of 1964. In the result rule is made partly absolute. Having regard to the facts and circumstances of the case and the question of law involved in the present case, there shall be no order as to costs. Order accordingly.