Annaji s/o Ghulbaji Dalvi v. Manohar Bhikulaji Maheshwari & other
1989-12-20
H.W.DHABE
body1989
DigiLaw.ai
X JUDGMENT - H.W. DHABE, J.:---The petitioner has challenged the orders of the Tenancy Courts dismissing his application for purchase of the suit fields under section 50 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short "the Tenancy Act"). 2. It is the case of the petitioner that he was inducted as tenant by the respondent-landlord in 1977-78 in field Survey No. 94/2 area 11.73 acres, field Survey No. 90 area). 99 acres and field survey No. 165/1 area 2.66 acres of village Suwardhara, Tahsil Ramtek, Distt. Nagpur. He claimed that he was also a tenant of the said fields in 1978-79 and 1979-80. The lease money agreed to was Rs. 450/- per year. Since he was inducted as a tenant after the relevant date i.e. 1-4-1963, he claimed that he had a right to purchase the suit lands under section 50 of the Tenanacy Act. He therefore, filed an application thereunder on 20-3-1988 for purchase of the suit lands since the respondent - landlord did not accept his offer to purchase the same. The respondent landlord contested the case on various grounds. One of the grounds raised by him was that there was no offer made by the petitioner-tenant for purchase of the suit lands and hence the application made by him for purchase of the suit lands was not maintainable. It was the case of the petitioner - tenant that he had given the oral offer of purchase to the landlord, which the landlord did not accept. On rival contentions the question which was urged before the Tenancy courts was whether the offer under section 43 of the Tenancy-Act is an offer which has to be made in writing, or whether even an oral offer satisfies the requirements of the said section. The learned Tenancy courts held that the section 43 of the Tenancy Act contemplated an offer in writing and since the petitioner - tenant did not admittedly give the offer in writing, his application for purchase under section 50 of the Tenancy Act was not maintainable. Feeling aggrieved by these orders of the Tenancy courts the petitioner tenant has preferred the instant writ petition in this Court. 3.
Feeling aggrieved by these orders of the Tenancy courts the petitioner tenant has preferred the instant writ petition in this Court. 3. The only question which arises for consideration in the instant writ petition is whether section 43 of the Tenancy Act requires an offer of purchase to be made in writing by the tenant to the landlord. In order to consider the said question, a brief reference to the relevant provisions of the Act would be necessary. As already pointed out, section 50 of the Tenancy Act enables a tenant inducted upon the agricultural land after 1-4-1963 to purchase the same. According to section 50 of the Tenancy Act every tenant holding the land under such tenancy as contemplated by the said section and cultivating it personally is entitled to purchase within one year from the commencement or as the case may be the restoration of tenancy so much of such land as he may be entitled to purchase under section 41 of the said Act. The provisions of sections 41 to 44 (both inclusive) are mutatis mutandis made applicable to such purchase under section 50 of the said Act. In interpreting the phraseology "shall be entitled to purchase within one year from the commencement of the tenancy" used in section 50 of the Tenancy Act, this Court has held that even if a notice is given to the landlord by the tenant for purchase of the land within one year from the commencement of tenancy, it would satisfy the requirements of section 50 of the said Act and that it is not necessary that he must also make an application for purchase of the tenanted land within one year from the commencement of his tenancy, See : (Govind v. Udhao)1, 1972 Mh.L.J. 588, (Nawajuddin v. Hanumandas)2, 1980 Mh.L.J. 643, (Mahadeo Raoji v. vinayakrao)3, 1980 Mh.L.J. 275 and (Bhabu Isa v. Sunderal)4, 1984 Mh.L.J. 705, of which the last one is the decision of the Division Bench of this Court. 4. It may be seen that section 50 of the Tenancy Act makes the provisions of Section 41 of 44 (both inclusive) applicable to the purchase by the tenant under section 50 of the said Act by treating it as a purchase under section 41 of the said Act.
4. It may be seen that section 50 of the Tenancy Act makes the provisions of Section 41 of 44 (both inclusive) applicable to the purchase by the tenant under section 50 of the said Act by treating it as a purchase under section 41 of the said Act. It may further be seen that since before the relevant date i.e. the date on which the tenant was conferred a right of statutory ownership under section 46 or - section 49-A of the Act the tenant was entitled to purchase the land from the landholder held by him as a tenant and cultivated by him personally as provided by section 41 of the Tenancy Act. The provisions of sections 42 to 44 covered the procedure of such - purchase. Section 43(1) prescribed the procedure for making an application, if a tenant desired to exercise his right of purchase conferred upon him by section 41 of the Tenancy Act. Section 43(2) - provided that if an offer was made by the tenant and if the landlord refused or failed to accept such an offer and execute the sale-deed within three months from the date of the offer, the tenant could apply to the Tribunal for determination of reasonable price of his tenanted land. The other provisions of section 43 provided for the manner of fixation of price by the Tribunal after giving hearing to both sides. Sub-section (8) of section 43 provided for issue of certificate of purchase, if the purchase price was deposited by the tenant, which certificate was made the conclusive evidence of his purchase. However, if the purchase price could not be recovered from the tenant, sub-section (10) of section 43 provided that the purchase would become ineffective. Sub-section (14-A) of section 43 provided that if the tenant failed to exercise his right of purchase under section 41 or if the purchase of any land has become ineffective, the tenant would be deemed to have surrendered to the landlord his tenanted land and such a surrender was treated as surrender within the meaning of section 20 of the Tenancy Act. It is in the context of the scheme of the aforesaid provisions that the question has to be seen whether the offer of purchase contemplated by section 50 read with section 43(1)(a) of the Tenancy Act has to be in writing or it can be oral also. 5.
It is in the context of the scheme of the aforesaid provisions that the question has to be seen whether the offer of purchase contemplated by section 50 read with section 43(1)(a) of the Tenancy Act has to be in writing or it can be oral also. 5. It cannot be disputed that normally under the Law of contract the offer of purchase as well as its acceptance can be oral. An important expression which is necessary to be interpreted in section 43(1)(a) is the word "stating". According to the Black's Law Dictionary (5th Edition) the dictionary meaning of the verb "to state" is to express the particulars of a thing in writing or in words; to set down or set forth the detail; to aver, allege, or declare, to set down in gross; to mention in general term, or by way of reference; to refer." From the above Dictionary meaning it is clear that one of the meanings of the word "state" is to express the particulars in writing or orally also. According to the Webster' Dictionary the meaning is as follows: "To express, as the particulars of a thing, in writing or words; as, to state the problem; to set down in details; to set forth in a formal manner; to narrate; to recite; to aver, allege, or declare; to settle". 6. The question, however, to be considered is in the context of the scheme of section 43 of the Tenancy Act, what meaning should be attributed to the said expression. It is well-settled, according - to the canons of construction, that any word or - expression used in the statute, should receive the contextual meaning which would further the object and purpose of the Act or the relevant provision under consideration. Section 43 of the Tenancy Act enacts the procedure for purchase of the tenanted land by the tenant. It makes detailed provision fro making an offer and the relevant matters to be included while making an offer. It also makes the provision as to what should be done if the landlord refuses to accept the offer and execute the sale-deed for which a period of three month's from the date of the offer is given in sub-section (2) of section 43 of the Tenancy Act.
It also makes the provision as to what should be done if the landlord refuses to accept the offer and execute the sale-deed for which a period of three month's from the date of the offer is given in sub-section (2) of section 43 of the Tenancy Act. If the landlord refuses or fails to accept the offer, the tenant can move the Tribunal for fixation of the purchase price which has to be fixed according to the provisions made in the Tenancy Act. It the tenant pays the purchase price, a certificate of purchase is issued to him. It the purchase price cannot be recovered from him it is provided that the sale would become effective. What is particularly necessary to be seen is that while making an offer, certain details have to be stated in that offer by the tenant. 7. Perusal of section 43(1)(a) of the Tenancy Act would show that while making an offer the tenant is required to state in the said offer the following particulars. : - (a) The price at which he is prepared to purchase the land, such price not exceeding twelve times the rent payable by him. (b) The depreciated value of any structures, wells and embankments constructed and permanent fixtures made, (c) The value of any trees planted on the land by the landlord after the period of the last settlement or where no such settlement is made during the period of thirty years before the commencement of the Tenancy Act, and (d) The amount of the arrears of rent, if any, lawfully due on the day on which the offer is made. Clause (b) of sub-section (1) of section 43 further requires that the tenant who is entitled to purchase a part of the land held by him as a tenant should - choose the area of location of the land to be purchased from the landlord and state in the offer the part which he has so chosen for being purchased.
Clause (b) of sub-section (1) of section 43 further requires that the tenant who is entitled to purchase a part of the land held by him as a tenant should - choose the area of location of the land to be purchased from the landlord and state in the offer the part which he has so chosen for being purchased. Rule 19 of the Rule framed under the Tenancy Act for the purpose of prescribing the manner in which the tenant should - exercise his choice under clause (b) of sub-section (1) of section 43 of the Tenancy Act, referred to above, provides as follows : "A tenant, who is entitled under sub-section (1) of section 43 to choose the area and location of the land to be purchased by him from the landlord, has to choose such area and location in such a manner, that the pieces of land chosen by him and the land, if any, held by him as tenure-holder and cultivated by him personally- (a) form one compact block, or ; (b) if they cannot form a compact block, are so situated that none of them is separated from another by a distance of more than five miles". 8. It is crystal clear from the above details required to be stated by the tenant while purchasing the land that the said details cannot orally be conveyed to the landlord. Perusal of sub-section (2) of section 43 would show that the landlord is given three month's time from the date of the offer to consider the offer made by the tenant in the above manner. It cannot, therefore, be in the contemplation of the law - makers that when the offer requires so many details to be given as prescribed it can be an oral offer. Therefore, in the context in which the word "stating is used in section 43(1)(a), it will have to be held that the said expression meands the stating in writing. 9. The learned Counsel for the petitioner has urged before me that wherever the legislature thought that the notices given should be in writing it has specifically so provided for in the Tenancy Act. To illustrate, the provision of section 38 of the said Act are brought to my notice to show that it is expressly provided in the said section that the notice in writing should be given.
To illustrate, the provision of section 38 of the said Act are brought to my notice to show that it is expressly provided in the said section that the notice in writing should be given. Similary, the provisions of section 19(1) and (II) of the Tenancy Act are also brought to my notice showing the requirement therein of a notice in writing. It is true that in the said provision it is expressly stated that the notice should be in writing, however, perusal of the said provisions would show that the express reference to the requirement of notice to be in writing is only by way of emphasis or is by way of abundant caution as even otherwise in the context of those provisions the notice required to be given thereunder has to be in writing. Thus merely because the expression "in writing" is not used in section 43(1) it would not follow that the offer thereunder can be oral particularly when the details which are necessary to be given by the tenant while making an offer as required by the said section are looked into or taken into consideration. It should be seen that the steps to be taken under section 43 of the Tenancy Act for purchase of the tenanted land by the tenant are intended to be precise and definite particularly in relation to acceptance of an offer because after its failure the tenant has to move the Tribunal for fixation of the purchase price. 10. The learned Counsel for the petitioner has then urged that if it is held that all the particulars required by section 43(1)(a) (b) are necessary to be stated in the offer thereby construing the giving of all the particulars in the offer as mandatory it is possible that such an offer would become illegal and invalid if some of the particulars required therein are not stated in that offer. in that offer.
in that offer. In my view, it is not necessary to consider the question whether the particulars necessary to be stated in the offer are a must in the sense that if any of the particulars are not stated the offer can be said to be illegal and invalid because the reference in this judgment to the requirement of the particulars to be contained in the offer is for a different purpose, viz., for the purpose as to whether the word "state" conveys the meaning that what has to be expressed or set down in the offer should be in writing. For instance, when a tenant, in order to comply with all the requirements of section 43(1)(a) and (b), wants to state all the particulars as required therein, the question is whether it is possible for him to do so orally, or in other words whether the law contemplates that giving of these particulars can be oral. The question whether giving of the details in the offer is directory or mendatory is not germane to the interpretation of the expression "state" in section 43(1)(a) of the Tenancy Act. The above submission made on behalf of the petitioner therefore deserves to be rejected. It has, therefore, to be held that the offer contemplated by section 43 (1)(a) is an offer in writing and not an oral offer. The view taken by the learned Courts below is, therefore correct and has to be upheld. 11. In the result, the instant writ petition fails and is dismissed. However, in the circumstances there would be no order as to costs. Petition dismissed. -----