Decided on January 20,1982

Sarjerao And Others Respondents


V.D.Tulzapurkar, J. - (1.) Respondent No. 1 claimed to be the protected tenant of two lands which were held by Respondent Nos. 2 and 3 as Inam Lands. Respondent No. 4 was formerly a protected tenant but it was alleged that he had surrendered his rights on 30th May, 1956. After the Inams were abolished under the Hyderabad Abolition of Inams and Cash Grants Act, 1955, the Tehsildar held that Respondent No. 4 was in possession of the lands on 20th July, 1955 (being the date of vesting of all the rights of Inamdars in Inam lands in the State Government under the Act) and that he was entitled to occupancy rights under the provisions of the said Act. This order of Tehsildar was confirmed in 1 appeal by the Government and therefore respondent No. 1 who claimed to be the protected tenant moved the High Court by way of Special Civil Application challenging the Government's decision. The High Court relying upon its earlier Full Bench decision took the view that possession as on 1st July, 1960 was material to determine the question as to who should be recognised as occupant of the land under the provisions of the Act and since on that point no finding had been recorded it remanded the matter for fresh inquiry. It was directed that the Tehsildar should hear all the parties including the Inamdars and then decide as to who was in lawful possession of the land on 1st July, 1960 and further that the person who was lawfully in possession of the land on the said date will be entitled to be recognised as an occupant of the lands under the provisions of the Act. Neither of the rival claimants has challenged this decision of the High Court but the State Government obtained leave from the High Court with intent to challenge the view taken in the Full Bench decision that the material date was not 20th July, 1955, but 1st July, 1960, possession on which date will entitle the person to claim occupancy rights.
(2.) Counsel for the State of Maharashtra has vehemently contended before us that having regard to the provisions of the Act under which the date of vesting has been fixed as 20th July, 1955 the High Court ought to have taken the view that possession as on that date should have been held to be determinative of the question who was entitled to claim occupancy rights. On construction of sections 5 and 6 having regard to the, other relevant provisions of the Act the Full Bench view seems to us to be correct and it is not possible to accept the contention of the State. It has been pointed out by the High Court in its judgment in Dattatraya Sadashiv Dhond v. Ganpati Raghu Geoli, 1965 B.L.R. 521 , that the date of vesting under the Act is not the same in all types of Inanis and that in respect of Inams abolished by the amending Act of 1959 to which sub-section (2A) of section 1 applies, the date of vesting is Ist July, 1960. But apart from this aspect of the matter the High Court felt constrained to give to some provisions of the Act a meaning which the language used may not strictly justify and that was done as that was the only way it could resolve the conflict between different provisions of the Act and could find a solution to the Chinese puzzle which the provisions had posed. At page 525 of the Report the High Court has made the following observations in regard to the drafting of the enactment in question: "Before we deal with the questions, which arise for our determination, we consider it necessary to observe that this Act and the subsequent amendments made to it have not been drafted with that care which may reasonably be expected having regard to the fact that the Act affects the vested rights in property of inamdars and several other persons. The Act contains conflicting provisions with the result that it is difficult to find out what exactly the legislature intended. There are also grammatical and spelling mistakes. If, therefore, we have given to some of the provisions of the Act a meaning which the language used may not strictly justify, it is due to the fact that that is the only way in which we can resolve the conflict between the different provisions of the Act and find a solution for the Chinese puzzle which they have posed."
(3.) On the pertinent question as to whether possession 20th July, 1955, or possession on 1st July, 1960, would be material for the purpose of deciding as to the person who would be entitled to claim occupancy rights under sections 5 and 6 of the Act, the Court has observed as follows: "The next question which arises for consideration is about the date, possession on which would entitle the inamdar, Kabiz-e-kadim, permanent tenant or tenant holding from the Inamdar to the rights of an occupant under section 5 or 6, as the case may be. These sections provide for grant of occupancy rights in occupied land, which is defined in clause (g) of section 2 to mean inam land, which is not uncultivated land, waste land, pasture land or forest land or not comprising a mine, quarry, tank, irrigation works, stream or river and which is in the actual or constructive possession of an inamdar. These sections came into force on 1st July, 1960 and therefore possession on this date should be considered which would entitle a person to claim the rights of an occupant on 1st July, 1960. The position as on this date should, therefore, be considered. Consequently possession, which entitle a person to claim the rights of an occupant, would be possession on July 1, 1960. The date of vesting has no bearing on this question. This is also clear from the fact that for the period from July 20, 1955, to July 1, 1960 the inamdar was made liable for payment of land revenue. He would not have been made so liable, if it was intended that the tenant in possession on the date of vesting July 20, 1955, should become the occupant. Possession as on July 1, 1960, should, therefore, be considered for deciding the question who was entitled to become an occupant under sections 5 and 6." (Emphasis supplied) In our view cogent reasons have been given by the High Court for taking the view that 1st July, 1960 should be regarded as the material date, possession on which date will entitle the person concerned to claim occupancy rights, moreover since the date of the Full Bench decision the said construction has held the field for the last over 20 years and what is important is the Legislature also has not thought fit o make any amendment which it would have done if in its view the High Court's construction was erroneous.;

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