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2000 DIGILAW 868 (BOM)

KASHINATH BABA ASBE v. STATE OF MAHARASHTRA

2000-12-08

V.C.DAGA

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Judgment V. C. DAGA, J. ( 1 ) :- The important question of law raised in these petitions is as under :-WHETHER section 32p of the Bombay Tenancy and Agricultural Lands Act, 1948 ( Tenancy Act , for short) is applicable to the lands after exclusion thereof from the area of Municipal limits?facts IN NUTSHELL : The facts, necessary to appreciate the above question of law are taken from Writ Petition No. 1203/1986, in nutshell, are as under :- 1. The petitioners are the legal heirs of the original tenant. The respondent Nos. 2 to 8 are the landlords of the lands in question bearing Survey Nos. 38/1, 39 and 43, situated at village Gopalpur, Taluka-Pandharpur, District- solapur (hereinafter referred as suit lands , for short ). There is no dispute about relationship of landlord and tenant inter se. The original respondent No. 2 Late krishnaji Patwardhan, purchased suit lands in Court auction held on 13th November, 1963. He obtained symbolical possession thereof. He got his name mutated in the revenue records, after acquiring title to the suit lands. ( 2 ) THE original respondent No. 2, after acquiring title to the suit lands, approached the Additional Tahsildar and agricultural Lands Tribunal, Pandharpur (hereinafter referred as A. L. T. , for short), and prayed for an enquiry under section 32-O of the Tenancy Act. The A. L. T. initiated enquiry under section 32-O, and by an order, dated 16th april, 1966, declared the purchase ineffective. ( 3 ) BEING aggrieved by the aforesaid order, the original tenant-late Shri Annappa Baba Asbe filed appeal before the appellate Authority, the Special Deputy Collector (Tenancy appeals), Solapur. The said Appellate Authority set aside the impugned order vide its order, dated 23-11-1966, and remanded the case to A. L. T. , for fixing purchase price as required under section 32g of the Tenancy Act. ( 4 ) BEING aggrieved by the aforesaid order, the original landlord invoked revisional jurisdiction of Maharashtra revenue Tribunal, Pune ( Revenue Tribunal , for short ). However, said Revision came to be dismissed by an order dated 30th December, 1968, with the result, the order, dated 23-11-1966, passed by Special Deputy Collector (Tenancy appeals), Solapur, in absence of any further challenge to it, became final and binding on the parties. In view of this order, the A. L. T. Pandharpur, initiated enquiry under section 32g of the Act. In view of this order, the A. L. T. Pandharpur, initiated enquiry under section 32g of the Act. In the said enquiry, A. L. T. declared the purchase of the suit lands by the tenant effective under section 32g of the Act and fixed the purchase price vide its order, dated 24th January, 1974. ( 5 ) THE original landlord challenged the aforesaid order in appeal bearing Tenancy Appeal No. 34 of 1979. The appellate Authority, after considering the rival contentions, vide its order, dated 24th December, 1980, allowed appeal and set aside the order of A. L. T. , and held that since the suit lands were falling in the Municipal limits on the tiller s day, as such provisions of section 43c of the Act were attracted. The applicant-tenant was therefore, not entitled to purchase the suits lands. ( 6 ) BEING aggrieved by the aforesaid order, tenant invoked the revisional jurisdiction of Revenue Tribunal, pune. The Revenue Tribunal dismissed Revision by an order, dated 31st March, 1983. The Revenue Tribunal, found that the lands, in question, were included in the limits of Municipal council, Pandharpur, in the year 1884, and continued to be the part thereof till it was excluded therefrom in the year 1961. Thus the suit lands were found to be part of the municipal area on the tiller s day. Consequently, Tribunal found that in view of the provision of section 43c, the provision of section 32g could not have been applied to the facts of the present case. On this premise, the Revenue tribunal confirmed the order of the lower appellate authority. ( 7 ) BEING aggrieved by the aforesaid Judgment of the revenue Tribunal, the present petitioners preferred Writ petition No. 5844 of 1983 before this Court. The same was dismissed in limine on 16th July, 1983. The original tenant carried Special Leave Petition to the Apex Court under article 136 of the Constitution. The Apex Court, vide its order dated 23-7-1984, dismissed the Special Leave Petition, and endorsed the view of the Revenue Tribunal, holding that the provisions of section 32g of the Act were inapplicable to the lands in question in view of applicability of provision of section 43c of the Tenancy Act. Thus, the said question attained finality. The Apex Court, vide its order dated 23-7-1984, dismissed the Special Leave Petition, and endorsed the view of the Revenue Tribunal, holding that the provisions of section 32g of the Act were inapplicable to the lands in question in view of applicability of provision of section 43c of the Tenancy Act. Thus, the said question attained finality. ( 8 ) AFTER the aforesaid first round of litigation, the respondent-landlords initiated fresh proceedings under section 32p of the Act to resume possession of the suit lands. On being noticed, the legal heirs of the original tenant appeared and raised objection to the maintainability of the proceedings under section 32p of the Act, on the premises that the amongst other provisions from sections 31 to 31r (both inclusive) were inapplicable to the lands in question in view of applicability of section 43-C of the tenancy Act. However, the Additional Tahsildar, Pandharpur, vide its order dated 25th September, 1984, overruled the said objection and held that the purchase of suit lands, by tenant, became ineffective under section 32g, consequently the proceedings under section 32p were maintainable and also found that the petitioner-tenants have no locus standi to appear and contest the said proceedings. ( 9 ) BEING aggrieved by the aforesaid order, the heirs of the original tenant preferred an appeal before the Assistant collector, Pandharpur, who concurred with the findings recorded by the Additional Tahsildar, and confirmed the said order, vide its order dated 26th October, 1984. ( 10 ) BEING aggrieved by the aforesaid orders of the authorities below, the heirs of the original tenant invoked revisional jurisdiction of Revenue Tribunal and contended that in the teeth of provision of section 43c the applicability of section 32p ought to have been ruled out by both the authorities below and the proceedings for resumption of possession of suit lands initiated by the landlord ought to have been dismissed. The said contention did not find favour with the Revenue Tribunal, with the result, revision was dismissed. ( 11 ) BEING aggrieved by the aforesaid Judgment of the revenue Tribunal, Writ Jurisdiction of this Court under article 227 of the Constitution was invoked by the heirs of the original tenant. The said contention did not find favour with the Revenue Tribunal, with the result, revision was dismissed. ( 11 ) BEING aggrieved by the aforesaid Judgment of the revenue Tribunal, Writ Jurisdiction of this Court under article 227 of the Constitution was invoked by the heirs of the original tenant. ( 12 ) THE second petition being writ petition bearing No. 1204/1986 has been preferred by another tenant who is also agitating for protection of his tenancy rights in the lands bearing Survey No. 148/1 of village Gopalpur, Taluka- pandharpur, admeasuring 19 acres and 14 Gunthas. ( 13 ) THE tenants are different but landlords are same in both the petitions. The issue involved is common, as such both the petitions were heard together, and are being disposed of by this common Judgment. CONTENTIONS OF THE PARTIES ( 14 ) THE learned counsel appearing for the petitioners contended that the suit lands were included in the limits of municipalCouncil, Pandharpur, in the year 1884, and continued to be so till its exclusion therefrom in the year 1961. The lands being part of the Municipal area of pandharpur, it were within the sweep of section 43c of the act. He further urged that in view of section 43c, the applicability of sections 31 to 32r were taken away by statute and, therefore, section 32p of the Act for resumption of lands was not available to the landlord. In other words, the landlord could not have been allowed to initiate proceedings under section 32p of the Act, as the said section was not at all applicable to the suit lands. ( 15 ) THE learned counsel for petitioners further contended that in the first round of litigation, the issue as to non-applicability of section 32g was concluded right upto the Apex Court on the touchstone of section 43-C of the act, as the suit lands were in the limits of Municipal council, Pandharpur on the tiller s day. According to him, the contentions raised in the earlier round of litigation and the sweep of the findings recorded therein went to the extent of holding that even after exclusion of the lands from Municipal limits, the provisions of section 32g were not revived. According to him, the contentions raised in the earlier round of litigation and the sweep of the findings recorded therein went to the extent of holding that even after exclusion of the lands from Municipal limits, the provisions of section 32g were not revived. He, therefore, submitted that applying the same analogy Revenue Tribunal ought to have held that the provision of section 32p was not revived, even after exclusion of the suit lands from Municipal area of pandharpur. Thus, the assistance of section 32-P ought not to have been made available to the landlords for resumption of suit lands. ( 16 ) THE learned counsel appearing for the petitioners further urged that omission to provide for provision under the Tenancy Act permitting the landlords to resume possession is deliberate and the same should not have been supplied by the Courts below by resorting to the process of interpretation. In his submission it is a firmly established rule that the Court is not at liberty to read words in a statute unless clear reason for it is found within the four corners of the Act itself or unless it is necessary to do so to give the language sense and meaning in its context. He further contended that Tenancy Act is a beneficial legislation meant for the benefit of tenants. As such it should have been construed while keeping the purpose of the act in mind. In his submission, omission to provide remedy in favour of landlords to resume possession is deliberate and, therefore, the same should not be supplied by the courts. ( 17 ) THE learned counsel, in order to buttress his submission, took me through the scheme of the Act, and brought to my notice deletion of section 43d of the Act by virtue of section 6 of Maharashtra act No. 10 of 1977, which reads thus :-6. ( 17 ) THE learned counsel, in order to buttress his submission, took me through the scheme of the Act, and brought to my notice deletion of section 43d of the Act by virtue of section 6 of Maharashtra act No. 10 of 1977, which reads thus :-6. Notwithstanding the deletion of section 43d of the Bombay Tenancy Act and of section 61 of the Vidarbha Tenancy Act, where proceedings for termination of tenancies are pending before the appropriate authority under any such Act and the landlord has taken possession of the land on, or before the date of introduction of the Maharashtra Tenancy Laws, and the Maharashtra Regional and Town Planning (Amendment) Bill, 1976, in the Maharashtra Legislative Assembly, then such proceedings shall be continued and disposed of by such authority, as if, this Act had not been passed, in all other cases, notwithstanding any judgment, decree or order of any Court, Tribunal or authority, such pending proceedings, shall abate, and the tenant shall continue to hold the land in accordance with the provisions of the Bombay Tenancy Act, or as the case may be, the Vidarbha Tenancy Act. In his submission, reading of the aforesaid section 6 as a whole unequivocally makes it clear that proceedings initiated at the instance of the tenants and which were pending before the appropriate authority under the Act on the date of introduction of Maharashtra Tenancy Laws and the maharashtra Regional and Town Planning (Amendment) Bill, 1976 in the Maharashtra Legislative Assembly, were allowed to be continued and mandated disposal thereof, as if, this act had not been passed, and in all other cases where the proceedings were initiated by the landlords were declared as abated notwithstanding any judgment, decree or order of any court, Tribunal or Authority. The learned counsel for the petitioner on the dissection of section 6, went on to spell out the legislative intent, and contended that by virtue of section 6 of Maharashtra Act No. 10 of 1977, the proceedings initiated by tenant for claiming possession from the landlord have been saved, whereas the proceedings initiated by the landlords against the tenants have been declared as abated. Consequently, in his submission, deletion of section 43-D in view of section 6 of Maharashtra Act 10 of 1977, is one of the pointers to show that the Legislature in their wisdom intended not to provide any remedy to the landlords for resumption of possession of tenanted lands falling within the limit of Municipalities or Cantonments. The learned counsel for the petitioners, as a extended limb of the same submission, contended that there is no provision under the Act for claiming possession of the lands from the tenant if the lands are within the sweep of section 43c of the Act. ( 18 ) THE learned counsel, in order to emphasise his submission, also tried to unfold the scheme of the Act, and tried to relyupon provisions of Chapter-VIII in general and provision of section 88 of the Tenancy Act, in perticular. He pointed out that section 88 gives power to the State government to exempt certain lands referred to therein from the operation of the Act. Similarly, he brought to my notice section 88b which provides for exemption from the applicability of certain provisions of the Act to the lands owned by Local Authorities, Universities and Trusts. He also read section 88c which grants exemption from the operation of the Act to the lands leased by the persons with the annual income not exceeding Rs. 1500/ -. He also pointed out that the Tenancy Act has given powers to the State government via section 88-D to withdraw exemption and has simultaneously made a provision vide sub-section (2) of section 88-D, so as to provide consequences of withdrawal of such exemption. Therefore, in his submission wherever legislature wanted to provide consequences of withdrawing exemption, a specific provision has been made in that behalf. No such similar provision is to be found in Chapter iii-B of the Act so as to provide for consequences after exclusion of the land from the Municipal limits. Therefore, in his submission, omission to provide such specific provision on the part of Legislature is deliberate and the same should not be supplied by the Courts. ( 19 ) IN reply to the aforesaid contentions, the learned counsel appearing for the respondents (landlords) contended that the intention of the Act is to confer ownership on the tenant, and not to allow the tenant to continue to be an ordinary tenant in perpetuity. ( 19 ) IN reply to the aforesaid contentions, the learned counsel appearing for the respondents (landlords) contended that the intention of the Act is to confer ownership on the tenant, and not to allow the tenant to continue to be an ordinary tenant in perpetuity. He therefore, contended that there is no other provision other than section 32p of the act to resume possession of the lands in question. He further contended that after exclusion of the area from the municipal limits section 32p will get revived, and it would come to the aid of the respondents-landlords, so as to enable them to claim possession of the suit lands. He tried to place emphasis on the words in case other than those appearing in section 32p of the Act, and contended that section 32p has been enacted and phrased in a wide manner so as to take care of the cases in hand. He, therefore, tried to support the impugned orders passed by the authorities below, and prayed for dismissal of the petition. POINT FOR DETERMINATION ( 20 ) IN the above backdrop, the question, which needs consideration, at the cost of repetition, is as under :-WHETHER section 32p of the Tenancy Act providing for resumption of possession of the lands from tenant is applicable to the lands after exclusion thereof from the areas of Municipal limits?consideration OF RIVAL CONTENTIONS