ANNA BALGONDA PATIL Vs. VASANT RAGHUNATH KULKARNI
LAWS(BOM)-1962-8-4
HIGH COURT OF BOMBAY
Decided on August 09,1962

ANNA BALGONDA PATIL Appellant
VERSUS
VASANT RAGHUNATH KULKARNI Respondents







JUDGEMENT

- (1.)The question, which has been referred to the Full Bench, is as follows: "Whether, for the purpose of section 88C of the Bombay Tenancy and Agricultural Lands Act, the material date lor ascertaining who is the landlord entitled to apply, whether the lands leased by him do not exceed an economic holding, and whether his total annual income does not exceed Rs. 1500/-, is the 1st of April 1957 or the 'postponed date' specified in the first proviso to Sub-section (1) of section 32?"
(2.)In order to answer this question, it is necessary to consider the relevant provisions of the Bombay Tenancy and Agricultural Lands Act. Sub-sec, (1) of Section 14 states that notwithstanding any law, agreement or usage, or the decree or order o a Court, the tenancy of any land shall not be terminated except on the grounds mentioned in Sub-clauses (i) to (v) of clause (a) of this Sub-section. This Sub-section, therefore, curtails the ordinary right of the landlord to terminate the tenancy of his tenant. He can do so only on one of the grounds mentioned in this Sub-section. Section 31 enables the landlord to terminate the tenancy of his tenant on two other grounds and these are that he requires the land for cultivating it personally or for using it for a non-agricultural purpose. Sub-section (1) of this section provides that notwithstanding anything contained in section 14 a landlord may, after giving notice and making an application for possession as provided in Sub-section (2), terminate the tenancy of any land, if the landlord bona fide requires the land for cultivating it personally, or for any . non-agricultural purpose. Sub-section (2) of section 31 states that the notice required .to be given under Sub-section (1) shall be served on the tenant on or before the 3ist December 1956 and that an ap-plication for possession under section 29 shall be made to the Mamlatdar on or before the 31st day of March, 1957. Sub-section (3) enlarges the period for giving a notice under Sub-section (1) and for making an application to the Mamlatdar where the landlord is a minor or a widow or a person subject to mental or physical disability or a serving member of the armed forces. The proviso to this Sub-section is as follows : "Provided that where a person of such category is a member of a joint family, the provisions of this Sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this Sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar, on inquiry, is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land, in the same proportion as the shar.e of that person in the entire joint family property, and not in a large proportion." This section therefore lays down 31st March, 1057, as the dote on or before which an application for possession on the grounds mentioned in Sub-section (1) could be made by a landlord, unless he belonged to one of the categories referred to in Sub-section (3). Section 32 makes the tenants the owners of the lands in their possession, with effect from ist April, 1957. except in certain cases. Subsection (1) of this section is in the following terms : "On the first day of April 1957 (hereinafter referred to as 'the tillers' day) every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if -- (a) such tenant is permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st- day of March, 1957, under section 29 for obtaining possession of the land; or (iii) the landlord has not terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957, under section 29 for obtaining possession of the lands : Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Mabarashtra Revenue Tribunal under the provisions of this Act the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as "the postponed date". Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to Subsection (3) of section 31 shall be deemed to have purchased the land on the ist day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso." Under this section, therefore, every tenant is deemed to have purchased the land held by him as a tenant on 1st April, 1957, referred to as the tillers' day, unless before this date an application for obtaining possession of the land had been made by. the landlord under section 29 read with section 14 or section 31 of the Act. If the landlord had made such an application, then the date on which tEa tenant will become the owner of the land (which for the sake of convenience, I will refer to hereafter as the date of vesting), is the date on which the application is finally rejected. In the case of a landlord, who is entitled to the benefit of Subsection (3) of section 31, and whose share in the joint family property has not been separated by metes and bounds before 3ist. March, 1958, the tenant will be deemed to have purchased the land on 1st April, 1958. Tho effect of this section is, as observed by the Supreme Court in Sri Ram Ram Narain v. State of Bombay, 61. Bom LR 811 at p. 825 : (AIR 1959 SC 459 at p. 472), that the title to the land, which was vested originally in the landlord, passes to the tenant on the tiller's May or the alternative date prescribed in that behalf.
(3.)Clause (a) in Sub-section (1) of section 32-F states that notwithstanding anything contained in the preceding sections, including section 32, where the landlord is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31. There is a proviso to this clause, which is in the same terms as the proviso to Sub-section (3) of section 31 refer- -red to above. Section 32-0 confers the right of ourchasing the land on a tenant, whose tenancy had been created after the tiller's day. Sections 3.3-A. 33'B and 33-O were inserted in the Act in 1961. Section 33-A, defines the term "certificated landlord" to mean a person who holds a certificate issued to him under Sub-section (4) of section 88-C. The expression "excluded tenant" is defined as meaning a tenant of the land to which sections 32 to 32-B do not apply by virtue of Sub-section (1) of section 88-C. Sub-section (1) of section 33-B states that notwithstanding anything contained in section 31, a certificated landlord may, after giving a notice and making an application for possession as provided in Sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. Sub-section (a) of this section provides that the notice may be given and an application made by a certificated landlord under Sub-section (3), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub-section (2) of section 31 is pending on the date of the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, that is, 9-2-1961, or has been rejected by an authority before this date. Section 33-C provides that notwithstanding anything contained in sub-section (1) of section 88-C, every excluded tenant shall be deemed to have purchased the land on 1st April, 1962, subject to the conditions mentioned in this section. Where a certificated landlord has made an application for possession under Sub-section (3) of section 33B, the tenant shall be deemed to have purchased the land, which he is entitled to retain in his possession, on the date on which the application is finally decided.


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