Thakur Sanjeevan Rao v. Jaidrath and Anr.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1060 of 1967. Appeal by special leave from the judglllent and order dated September l 4. 1966 of the Bombay High Court in S.C.A. No. 926 of 1965. W. S. //ar/ingay and A. G. Ratnaparkhi, for the appellant. Respondent did not appear. The Judgment of the Court was delivered by DuA, J. This is a landlord's appeal by special le<>:ve . ·and is directed against the judglllent of a learned single Judge of the Bombay High Court, disallowing the appellant's application under Art. 227 of the Constitution challenging the order ot the Miih.a~ rashtra Revenue Tribunal dated March 26, 1965 partly allowing the revision of Jaidrath and VittaJ, tenants (respondents in this Court) presented in the Tribunal under ss, 28(2) and 32(2) of the Hyderabad Tenancy and Agricultural Lands' Act, 21 of 1950 (hereinafter called the Act).

Jaidrath and Vittal were tenants under the appellant (who was inamdar) and according to the appellant's allegations the tenants were in arrears of rent for three consecutive years, 1957- 58, 1958-59 and 1959-60. On June 18, 1960 the appellant terminated the respondent's tenancy by giving the necessary statutory notice. On August 4, 1960 an application was presented by the appellant to the Tehsiidar, Nillam, under ss. 28(2) and 32f2) of the Act praying for arrears of rent amounting 1o Rs. 1,200 and for possession of the la.nd on the ground that their tenancy had ~!1 lawfully terminated. lhis application was heard by the Naib Tahsildar who allowed it and ordered the tenants to pay the rent amounting to Rs. 925.77 np to the landlord (Inamdar) and also held that the tenancy had been terminated. As a result of J T. s. RAO v. JAIDRATH (Dua, J.) this conclusion the possession of the land was directed to be restored to the landlord under s. 32(2). This order was made on November 28, 1963.

An appeal preferred to the Deputy Collector by Jaidrath and Vittal was dismissed on August 31, 1964. A revision under s. 91 of the Act was taken by the tenants 10 the Maharashtra Revenue Tribunal, Aurangabad which was allowed in part. The Tribunal affim1ed the concurrent findings of the Naib Tehsildar and Deputy Collector that the tenants were in arrears of rent. In regard to the claim for possession ·the Tribunal held that under s. 3 (1) of the Hyderabad Abolition of Jnams AC't, VlU of 1955 (hereinafter called the. Abolition Act), all rights and interests with respect to the inam lands vesting in the lnamdar had ceased. and had vested absolutely in the State with effect from July 20, 1955. On this reasoning the landlord was held disentitled to claim possession of the inam land under s, 32(2) of the Act. The Tribunal further held on the evidence led by the tenants that ilie occupancy rights had been conferred on and given to the tenant under the provisions of the Abolition Act.

The Tribbnal, referring to 1he facts of the case observed in its order : " .... on 7-10-1961 the tenant Jaidrath submitted an application before the Tehsildar in which he alleged that the lands in dispute were Inam lands and thus Inarn lands vested in the State from the date of enforcement of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 and the petitioner was declared as the occupant of the said lands from 27th July, J 955. In view of this fact the said tenant pleaded that tht: landholder was not entitled to recover possession of the said lands from the tenants. In support of his allegation he filed a notice he received from the Tehsil Office for depositing 1he price of occupancy rights. In response to the notice it seems that he deposited Rs. 75/- in Treasury Office on 30-6-1961. The original chaJlan has also been filed by Jaidrath .... "

Dealing with this part of the case, the Tribunal added a little lower down :- "As regards the second relief sought by the landholder I wish to point out tha\ both the lower courts failed to give correct decision. The tenant in •the lower court submitted the notice received from the Teh~il office and the challan b~ which the price of occupancy rights was deposited by the tenant in the Government Treasury under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act. The revision netitioners had raised the plea before the trial court that the [1973] 2 s.c.x. suit lands were inani lands the occupancy rights of which were given 10 the tenants and hence the landholder was n01. entitled to recover possession of the said lands. There was great force in this plea. The dpcwnents filed by the tenants in the lower court clearly show that S. No. 273 and 260 situated at Massa are inam lands. Jaidrath was given the price of occupancy rights by the notice issued on 3-9-61.

Thus we find the lands in dispute were inam lands. Under section 3 sut•section 1 of the Hyderabad Abolition of Jnams Act all rights and interests vesting in the Inamdar in respect to the. Jnam lands ceased and vested absolutely in the State. The date of vesting is 20th July, 1955, hence the landholder has lost his right to recover possession of the lands from the date of the enforcement of the Hyderabad Abolition of' Inam Act. It is not correct to say that the landholder cannot be deprived of the rights accrued to him prior to the enforcement of the said Act. Both the lower courts have wrongly held that the subsequent change in the law will not deprive person of the rights which accrued to him before the new law was enforced. So far as the claim ot' rent is concerned I 1hink that the Inamdar was entitled to recover the amount of rent.

But he cannot be given possession of the lands under section 32(2) of the Hyderabad Tenancy Act when it is found t!:at all rjgh1s pertaining to inam vested in the Government from 20th July, 1955. Moreover the occupancy rights have also been conferred and given to the tenant under the provisions of 1he Hyderabd Abolition. of lnams Act. In view of these facts the respondent was not entitled to recover possession of the inam lands." The order of 1he Deputy Collector confirming that of the F I Naib Tehsildar directin~ possession to be given to the landlord was accordingly set aside. The High Court on being approached under Art. 227 of the Constitution confirmed the final order of the Tribunal but on different grounds. According 'lo the High Court where the inam was abolished with effect from July 20, 1955 under the Abolition Act the relationship of landlord and tenant continued to subsist till July I, I 96Q, and the provisions of the Act, therefore, conti- . nued to apply to the land.

But as in this case the landlord had on.June 18, 1960 given to the tenants only to a notice to-quit and pad not apnlied for possession under s. 32 of the Act the relationship of landlord and tenant continued to sub<:ist un to July 1. 1960 when this relationship came to an end. Thereafter the landlord was not entitled to claim possession pursuant to 1he notice to quit. II t ll T. s. RAO v. JAIDRATH (Dua, !.) The learned single Judge took Ibis view following the Full Bench decision of the Bombay High Court in Dattatrava Sadashiv v. Ganapati Raglzu ( 1). This view of the High Court is challenged in the present appeal by Dr. Bar!ingay, who11ppeared in this Court in support of the appeal. Unfortunately there is no appearance on behalf of the respondents with the result that we did not have the benefit of the arguments in support of the opposite point of view. Before us Dr. Barlingay contended that the High Court was in error in following the Full Bench decision in the case of Dattatrava Sadashiv (supra) because that case was concerned with the landlord's claim for possession under s.

44(2) of the Act, which is not the case before us. Section 44(2) of the Act, according to Dr. Barlingay's submission,. deals with a different situation and that section is inapplicable to the case in hand. The pn:sent case, according to the iearned advocate, has to be decided in the light of ss. 19, 28 and 32 and not s. 44(2) of the Act. According to s. 19(2) the landholder is entitled to terminate a tenancy on the ground inter alia tha1 the tenant had failed to pay in any year rent for that year, within fitteen days from the day fixed under the · l;and Revenue Act for the payment of the last instalment of land revenue due for the land concerned in that year.

Section 28 which provides for relief against termination of tenancy for nonpayment of rent lays down that where a tenancy of any land held QY a tenant is terminated for non-payment of rent and the landholder files any proceeding to eject the tepant, the Tehsi'dar shall call upon the tenant to 1ender to the landholder the rent in arrears together with the cost of proceeding within ninety days from the date of the Qider and if the tenant complies with such order, pass an order directing that the tenancy has not been terminated, and thereupon the tenant shall hold the land as if the tenancy had not been tel'lninated. According to the proviso to sub-s. ( 1), however, this relief against termination is not admissible to a tenant whos.e. tenancy has been terminated for non-payment ot rent if he has t.a1led for any three years to pay rent within the period specified m .s. 19(2) (~).

Section 32 which prescribes the procedure for taking possess10n lays down that no landholder shall obtain P?ssession ~f any land ~tc., held by a tenant excep1 under an order 0r the Tahstldar for which he shall apply in the prescribed form. pr. Barlingay pointed. out by referring us to the Full Bench dec1s.1on of the Bombay High Court in Dattatraya Sadasliiv (supra that m that case the landlord's claim again~t the tenant was g"verned bys .. 44(2) of the Act. Section 44 deals with a landlord's right to tem1111ate protected tenancy where he requires if for cultivating II) 67 Bom L.R. 521. it personally. In such a case, according, to the submission, othe tenancy is tenninated only by virtue of an order of the revenue authorities. Our attention was invited to the following observation of the Bombay High Court in Dattatraya Sadashiv (supra) :- In regard to the second question, sub-s.

(1) of 44 of the Tenancy Act provides that a landholder may after giving notice to the tenant and making an application for possession as provided in sub-s. (2) terminate the tenancy of any land, if the landholder boira fide requires the land for cultivating it personaliy. Subsection ( 2) states that the notice required to be given unde~ sub-s. ( 1 ) shall be _in writing and shall state t<1e purpose for which •the landholder requires the land and that an application for possession under s. 32 shall be made to the Tehsildar. Two things are, therefore, necessary for terminating a tenancy under sub-s. ( 1 ) : ( 1) a notice must be given to the tenant stating that the landholder requires the land for cultivating it personally, and (2) the landholder must make an application for pJssession to the Tehsildar under s. 32 of the Act. If these requirements are complied with, the tenancy stands tenninated.

Sub-section ( 2) of section 3 2 provides that no landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form. A tenant is, therefore, enti!tled to continue in possession of the land until the Tehsildar has made an order for possession being restored to the landholder. It has, therefore, been urged that he continues to be a tenant until the Tehsildar bas made his order. The manner in which a •tenancy is to be terminated is, however laid-down in s. 44. Under this section the tenancy terminates when after giving the requisite notice the landholder makes an application for possession 10 the Tehsildar. Thereafter the tenants's possession is not unlawful, but it is not held by him as a tenant. He has an eatste in possession, which he will lose if the Tehsildar makes an order in favour of the landholder.

If, however, the Tehsildar rejects the application of the landholder the termination of tenancy by the landholder will becom'e ineffective. The tenancy will revive and the tenant will continue in possession as if his tenancy had .not been terminated." 1l T. s. RAO v. JA!DRATH (Dua, J.) After so observing the High Court compared the case of termination of tenancy under s. 44 of the Act with the case governed by ss. 19 and 28. In its view, according to s. 19 which provide' for termination of a tenancy inter alia on the ground of failure to pay rent within the prescribed time, the tenancy shall not be ter-· minated unless the landholder gives silt months' notice in writing intimating his intention to terminate the tenancy and also the ground of such termination. The High Court then referred to s. 28(1) and observed :

"The opening words of this sub-sec1ion make it clear that a proceeding to eject a tenant can ~ instituted after the tenancy has been terminated, that is to say, an applica·tion for possession can be made to the Tehsildar under s. 32 only after the tenancy has been terminated. A tenancy is, therefore, 1erminated by the notice given under sub-s. (2) of s. 19 and an order of the Tehsildar is not required for this purpose. In fact until the tenancy is terminated, the landholder does not get a right to possession of the land. The words 'as it' the tenancy had not been terminated' at the end of the sub-section also imply that the tenancy had previously been terminated. Section 28, therefore, also shows that a tenancy is terminated by giving a notice to the tenant and that it does not continue until the Tehsildar has made an order for possession of the land." Relying on these observations Ur.

Barlingay submitt(~d that the· decision in Dattatraya Sadashiv (supra) has been wrongly considered as an authority for the case in hand. prima facie Dr. Barlingay's submission seems to possess merit and ~he High ·Court appears to us to be not quite right in relying on Dattatraya SadaShiv (supra) as a binding precedent for the present case. Unfortunately, as already observed, we did not have the benefit of the opposite view, or of the arguments sup-· porting the view taken by the Tribunal or supporting the conclusion of the 'High Court on grounds other than those staed by it in the impugned judgment, because the respondents were unrepresented in this Court and this appeal was heard ex parte. Dattatraya Sadashiv (supra) no doubt is a direct authority only for a case where an application is made by a landlord under s. 44· of the Act and the reference to ss. 19 and 28 was made apparenty for the purpose of fortifying its view of s.

44 by contrasting the two kinds of cases dealt with by the Act. lncidentlly we may point out that in the State of Maharashtra v. Laxman Ambajl(1) this Court, while considering certain pro-· (l) A.l.R.1971S.C.1859. SUPREME COURT REPORl'S visions of the Act, observed that the relationship of landlord and ,tenant under the Abolition Act ceased on July 1, 1960 and if a enalit had prior to that date surrendered possession and the namdar had accepted such surrender and hac remained in pos- .session on July 1, 1960, he would be entitled •to the grant of occupancy rights. If, however, the tenant claimed to be in possession on that date the Government will have to ascertain as to who was in lawful possession on July 1, 1960 for the purpose of grant of occupancy rights. In the course of the judgmell't ~eference was made to the Full Bench decision in Dattatraya Sadashiv (supra) and that decision was approved on the point that the relationship of landlord and tenant continued up to July 1, 1960.

These decisions do not deal with the effect of the absolute vesting in the State of all rights and interests with respect to the inam lands with effect from July 20, 1955. Again, can it be said that this vesting became ineffectual by reason of mere continuation Of the relationship of landlord and tenant up to July 1, 1960 ? Uncier s. 1 (3} of the Abolition Act which had been published in th" Hyderabad Gazette Extraordinary on July inter,alia, s. 3, except els. (d), (g), (h) and (i) of sub-s. (2) of s. ~ came into force on July 20, 1955. Section 3 provides :- "3. Abolition and vestjng of inams and the consequences thereof :- (1)

Notwithstanding anything to the contrnry con- . tained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force . of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams to which this Act is made applicable under sub-secti<,n (2) of section 1 of this Act shall be deemed to have been abolished and shall rest ill. the State. (2) Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting, the following consequences shall ensue, namely (a) the provisions of the Land Revenue Act, 131 7 Fasli r~lating to inams, and the provisions of the Hyderabad Atiyat Enquiries Act, 1952 and other enactments, rules, regulations and circulars in force in respect of Atiyat grants shall. to the extent, they are repugnant, to the provisions of this Act, not apply and T. s. RAO i'.

JAIDRATH (Dua, J.) l 11 the provisions of the Land Revenue Act. 1317 Fasli relating to unalienated' lands for purposes of land revenue, shall apply to the said inams; ( b) all rights, title and interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant in respect of the inam land, other than the interests· expressly saved by or under provisions of this Act and including those in all communal lands. cultivated and uncultivated lands (whether assess~d or not), waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumberances; ( c) all suc.h inam lands shall be liable to payment of land revenue;

Id) all rents and land revenue inculding cesse:s and royalties, accruing in respect of such inam lands, on or after the date of vesting, shall be payable to the State and not to the inamdar, and any payment made in contravention of this clause shall not be valid; (e) all arrears of revenue, whether as judi, quitrent or other cess, remaining lawfully due on the date of vesting in respect of any such inam shall, after such date, continue to be recoverable from the inamdar by whom they were payable and may, without prejudice thereof from the compensation amount payable to him to any other mode of recovery be realised by deduction under this Act;

( f) no such inam shall be liable to. attachment or sale in execution of any decree or other· process of any Court and any attachment existing on the date of vei;ting or any order for attachment passed before such date' in respect of such inam, shall, subject to the provisions of section 73 of the Transfer of Property Act, I 882, cease to be in force; ( g) the inamdar and any other person whose lights have vested in the State under clause (b) shall be en-titled only to compensation from the Government as provided for in this Act; (h) the relationship with regard to inam land as between the inamdar and kabiz-e-kadim, pe1manent tenant, protected tenant or non-protected tenant shall be extinguished;

(i) the inamdar, kabiz-e-kadim, permanent tenant, protcted tenant, and a non-protected tenant of inam lands, and any person holding under them and a holder of an inam, shall as against the Government, be entitled only to such rights and privileges and be subject io such conditions as are provided for under this Act aitd any other rights and privileges which may have accrued to any of them in the inam before the date of vesting again'! the inamdar shall cease and shall not be enforc~able against the Government or the inamdar. ( 3) Nothing contained in sub-sections ( 1) and ( 2) shall operate as bar to the recovery by the inamdar of any sum which becomes due to him before the date of vesting by virtue of his rights as inamdar and any such sum shall be recoverable by him by any process of law. which, but for this Act, would be available to him."

IJ We have reproduced this section for showing that the effect E of these provisions on the facts of the present case would have to be. considered before grantin,g the appellant's prayer for possession. The other question which also requires consideration is the respondent's contention upheld by the Tribunal that the occupancy rights under the Aboliiion Act had already been conferred on fhe• tenants. The entire record not being before us and the tenants not being represented in this Court we are unable to deal with this important point. After considering all the implications of the appellant's arguments as suggested by Dr. Barlingay we consider it proper to set aside the order of the High Court and send the case back to it for a re-decision after considering the distinction pointed out by the Full Bench of the Bombay High Court in Dattatray(l Sadashiv (Supra) and in the light of this Court's decision in Laxman Ambaji (supra).

As just pointed out, we did not have the advantage even of going through the relevant record of the case as it was not got printed by the appellant. Jn the circumstances, this j~d¥'11en~ should not be const;ued to contain any expression Qf optmon either way on the ments of the controversy exhaustively discussed by the Tribunal in its order dated March 26, 1965. T. s. RAO V. JAIDRATH (Dua, J.) Our decision is limited only to the point that Dattatraya Sadashiv (supra) is not a binding precedent for the decision of the case in h~nd. The order of the High Court is accordingly quashed and the case remitted back to the High Court for a fresh decision of the application under Art. 227 of the Constitution in accordance with law and in the light of the observations made above. As there was no representation on behalf of the respondents there will be no order as to costs. V.P.S. 9-L348 Sup. Cl/73