Rang Nath v. Daulatrao and Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 30 of 1968. Appeal by S~lccial Leave from the Judgment & Order dated the 14th October, 1966 of the Bombay High Court in W.P. (Sp!. Appln. of l019 of 1965). B. /V. Lokur and A. G. Ramaparkhi, for the Appellant. S. T. Desai and R. B. Datar, for Respondent No.

1M. ,\'. Shroff, for Respondent No. ~. The Judgment of the Court was delivered by UNTWALTA, L-ln this appeal filed by special leave of this Cou1·t it would be noticed that the appellant has 2mlcuvourcd on one ground or the other to g1;t the; 15 acres and 14 Gunthas oi land in Osmanabad which nt one time formed part of the erstwhile State of Hyderabad and eventually came to be a part of the State of Maharashtra. The disputec1 land is comprised in Survey No. 206/B. There is no dispute that the appellant was the Inamdar of this land. The Hyderabad Abl11ition of Inams and Cash Grants Act, 1954 being H.vderabad Act No. VITT of 1955 (hereinafter called the Abolition of Jnams Act) came into f,orcc on its publication in the gazette on the 20th July. 1955. The Abolition of Inams Act was amended by the Hyderabad Abolit:on of Inarns (Amendment) Act, 1956 and wris further amended by Bombay Act 64 of 1959 which came into force on 1st July, 1960.

Tt is no longer in controversy that the Abolition of Inams Act bec.amc applicable to the appellant's Inam by virtue of the amended provisions on 1-7 -1960 as a result of which under Sec:- tion 3 appellant's ·Inam was abolished and vested in the State. Upon its vesting, certain consequences followed which will be adverted to hereinafter in this iudgmcnt. 1RANGNATH \I. DAULATRAO (Untwalia, /.) , The first· round of litig-<1tion started by the appellant against res- . ponderit no. l treating him as his tenant under the Hyderabad Ten· ancy and Agricultural Lan:d Act, 1950, Hyderabad Act No. XX! of 1,950 (hereimtfter called the Tenancy Act) was started by the appel- ·lant by serving a notice on the first respondent under section 44 of the said Tenancy Act.

The appellant claimed in that proceeding that he B .. bonafide required the land for cultivating it personally and hence after service of notiCe purporting to terminate the tenancy by the 31st day of December, 1958 he' procee~ed to file an application on 18-3-1959 for possession of the land under section 32(2) of the Tenancy Act. The. Naib Tehsildar, Land Reforms, Osmanabad rejected the resump· tion application of the appellant by his order dated 22-10-1959 hold- . ing against him on merits that he has made out no case for termina- C · tiori of the tenancy. The appellant went up in appeal which was allowed by the Deputy Collector Land Reforms Osmanabad by his order dated 25-5-1962. The Deputy Collector allowed th~ appelfant to resume the disputed lands in Survey No. 206 holding in his favour on merits. Respondent no. 1 went up in revision. The Revenue Tribu11al allowed the revision of respondent no. 1 by its order made on 15-10-1962.

It took the 1 1 view accepting a new stand taken on behalf of the tenant respond~nt no. 1 that after the abolition and vesting of the appellant's lnam the said respondent who was in possession· of the land covered by the Jn'~m as a tenant holding from the Jnamda.r had acquired all the rights "of an occupant in respect of such land under section 6(1 )(a) of the\ Abolition of lnams Act. The appellant ' moved the High Court of Bombay under Article 227 of the Constitution of India in Special Civil Application No. 1881 of 1962. Agreeing · ·• with the vi{·\v of the Revenue Tt'ibunal the Special Civil Application was dismissed by the High Court on 26-9-1963. The second round of fight culminating in the present appeal statted between the parties when proceedings under section 2A which was introduced in. the Abolition of Inams Act by section 6 of Bombay ··.·.Act, 64 of . f959 were initiated before the Officer authorised by the State Government to decide certain questions relating to Inams.

The Tehsildar gave a notice to respondent no. 1 for payment of price in lieu of his. having acquired the right of an occupant in the land Li accordance with Section 6 of the Abolition of Inams Act. The appellant filed his objection and asserted that respondent -no. 1 had not become the occupant of the land under the provisions of law aforesaid. Various questions were raised by him. The Deputy Collector decided the matter in the first instance by his order dated 30-11-1962. He held that the land was granted to the appe!Iant for his service as Mahajan; it could, therefore, be deemed to be a Watan. fand. He further held that the provisions of section 6 of Abolition of Inams Act were applicable and the date of vesting of the Jnam was 1st July, 1960 and not 20th July, 1955.

Since he was not the Officer to decide the question of possession under section 6 (1) o: the Abolition of Tnams Act, he remained content by saying in his order dated 30-11-1962 ''The land in question being the Watan land, shall be resumed and \'cstcd in Government with effect from 1st July 19?0 and the person I 02 [1975] 3 s.c.R .. in possession of the land at the time of vesting ~hall be entitled to occupancy right under section 6(1) of the Act in respect of $e said land." He finally directed that a copy of t)l.is order be sent to the Tehsildar Osmanabad for further necessar·y action. The Tehsildar by his order dated 15-7-1963 decided the matter in favour of tho first respondent and held him to be a tenant in possessi.on of the land on the date of vesting of the Inam and hence a p~rson acquiring the rights of an occupant under section 6 ( l). The objection of the appellant was rejected by the Tehsildar.

The appellant filed an appeal before the State Government under . sci.:tion 2A(2) of the Abolition of Inams Act fr<Jm the decision of the Tehsildar. The rejection of the appellant's appeal by the State Govnnment was conununicated to him by a letter dakd 27th November, 1964 of the Under Secretary to the Government of Maharashtra, Revenue and Forest Department. The appellant challenged the order of the State Government in Special Civil Application No. 1019 of 1966 under Articles 226 and 227 of the (',onstitution of India in the Bombay High Court. A Bench of the High Court dismissed his Writ Application by it~ judgment and order dated 14-10-1966. The appellant prese11ted this appeal by special leave of this Court. Mr. B. N. Lokur, learned counsel. for the appellant made the following submissions in support of the appeal : 1. That the State Government was not justified in rejecting the appellant's statutory appeal witnout giving him hearing and without passing any reasoned order.

2That the lnam in question was a service Inam and hence in view of the provision of law contained in section 102A(c) of the Tenancy Act the said Act was not appliccible to the land in question; respondent no. I could therefore never be a tenant of the lam!.

3That the proceedings initiated by the appellant for resumption of land under the Tenancy Act were all ultra vires and without jurisdiction, there being no relationship of !!!ndlord and tenant between the parties under the Ten· ancy Act, jurisdictior.. could not be conferred by an erroneous stand of the appellant that the first respondent was his tenant.

4In an,y view of the maticr the tenancy was termimited by· service of a notice under section 44 and the filing of the application under section 32(2) .of the Tenancy Act, against respondent no. 1. He, was, therefore, not a tenant in possession of the land on 1-7-1960 the date of vesting of the Inam . .S. Thp High Court has committed an error in holding that· its judgment in Special Petition No. 1881 of 1962 operat· ed .. t' rcs-iudic1ta on the question of respondent no. 1 acquiriing the right of an occupant under section 6(1) of the Abolition of Inams Act. RA~G'.'IATH v. DAULATRAO (Untwa/ia. J.) In our judgmeni none of the points urged on behalf~f the appel- Lrnt is flt t9 succeed. It was not necessary for the State Government to give a personal' hl.'.aring to the appellant or his authorised representative before disposal of his appeal.

As has been repeatedly pointed out by · this Court the State Government ought to have disposed of the statutory a ppcal of the appellant filed under· section 2A ( 2) of the Abolition ,,f Inams Act by a speaking order. It may. not be possible in all cases to say that a non-speaking order is bad or invalid on that account alone but when an order is liable to be challenged under Articles 226 or 227 of the Constitution of India, CoU.rts do insist that an appeal 1)f the kind filed by the appellant should be and ought to have been disposed of by a speaking order giving some reasons in its support. But on the facts and in the circumstances of this case the High Court did not feel persuaded, and in our opinion rightly, to set aside the order of the State Government and remit back the appellant's appeal to them merely on that account. No determination or adjudication of facts was involved. The decision of the case rested on the points of law.

The High Court did examine the question as to whether respondent no. l could not be a tenant of the appellant because of the reason that the Inam had been held to be a Watan foam and oonsequently according to the appellant it was a service Inam. In the present proceeding the High Court pointed out that respondent no. I was admittedly the appellant's tenant. Mere service of notiee under section 44 of the Tenancy Act had .not terminated the tenancy. The proceeding for resumption of the land under the Tenancy Act finally terminated against the appellant on the ground that respondent no. J could no longer be evicted as he had acquired the right of an occupant under the Abolition of Inam Act. On the finding recorded by the Deputy Collector in his order dated 30-11-1962 that the appellant held the Inam as a Watan for the purpose of this case we shall assume in his favour that it was a service lnam and hence the provisions of the Tenancy Act were not applicable.

But such a stand is. wholly contrary to the appellant's case in the pre-. vious proceedings for resumption of land. Every where the appellant asserted that respondent no. I was his tenant, so much so that in his Special Civil Application No. 1881 of 1962 a copy of which was ,given to us by Mr. S. T. Desai, learned counsel for respondent no. 1, he had stated in paragraph 7 "That the learned Member of the Tribunal has failed to apply his mind to the provisions of Sec. I 02 ( c) which was in force prior to the substitution of new Section 102-A(c) of the Hyderabad Tenancy and Agricultural Lands Act. It does not apply to the case in question as the suit land is an Inam land not a service Inam, so the Tenanoy Act is applicable to the present case." ' It is not open to the appellant to change his stand and then assert that the previous proceedings started by him for resumption of the land was ultra vires and without jurisdiction as the Tenl!llCY Act was not applicable to the land.

The appellant than tried to urge that respondent no. 1 could not be and was not a tenant of the land. But this contention is also not open to the appellant. No where it has been ·asserted by the appellant not even in the statement of the case and the additional grounds filed ·in this Court except in the argument put forward by his learned counsel that the Inamdar of the kind the appellant was, had no r.ight to induct any tenant on -the foam land. The fact remains that respondent no. 1 was in culth1ating posscsi;;ion of the land in qu1~stion paying rent to the appellant since long tcforc the vesting of the lnam. It could not but be in his capacity as a tenant of the appellant. It is not open to the appdlant to assert that the order mude bv the Revenue Tribunal or as a mutter of that in his earlier Specia( Civil Application by the Bombay High Court was in. a proceeding in which there was inherent lack of jurisdiction in the tirst authority and consequently the order was also a nullity.

There is no .substance in the 4th submission of Mr. Lokur. Section 44(1) of the Tenancy Act reads as follows : 44( 1) ''Notwithstanding anything contai1ml in section 6 or 19 but subject to the provisions of sub-sections (2) to ( 7), [landholder (not being a landholder within the meaning of Chapter IV-C) may] after giving notice to the tenant and making an application for possession as provided in subsection (2). terminate the tenancy ofany land, if the landholder bonatide requires the land for cultivating it personally." Section 32 presnibcs the procedure of taking possession of the land and sub-s•~ction (2) says "Save· as otherwise provided in subsection (3A), no Jandhoklcr shall obtain possession of :my land or dwelling house hl!ld by a tenant except unckr an order of the Tehsil· dar, for which he shall apply iil the prescribed form within a period of two years from the date of th'! commencement of the Hyderabad Tenancy and Agricu.tural La111.ls (Amendment)

Act, 1957. or the date on which the right to such possession accrued to him whichever is later." Reading the wordings of sections 44( I) and 32(2) of the Tcn~ncy Act it was not possible tci accept the contention put forward on behalf of the appellant that by mere service of notice and the filing of application for possession the tenancy had some to an end. Until and unless possession was directed to be delivered to the landholder by the competent authority, ·the tenant continued in possession and ~ontinued to be so as a tenant. A full Bench of the Bombay High Comt in Dattatmya Sadashii· Dhond v. Ganpati Raglm Gaoli(') expressed the view at pag~ 529 'Th;: manner in which a tenancy is to be terminated is, howe"'.er, laid down in section 44. Under this section the tcn~ncy terminates when after giving the requisite notice the landholder makes an applici1tion for possession to the Tehsildar. Thereafter the tenant's possession is not unlawful, but it is not held by him ns a tenant.

He has an estate in possession, which he will lose if the Tehsildar m:1kes an order in favom of the landholder. If, howewr, the Tchsildar rejects the appl.ication of the l<mdhokler, the termination uf tenancy by the landholder will kcome ineffec\ive. The tenancy will revive and the tenant will ..:onrinuc in --(i)- 67--&~bay -Law Reporter, 521. RANGNATH r. l),\ULATRAO ( Ull/walia, .!.) po-;scssiui1 as if his tenancy had not been ter:ninatcd.''

Although the . view so expressed by the Bombay High Court may not be quite accurate and the better view to take may be to say that the process of termination of tenancy started by the service of notice and the filing of the application for possession by the landholder is not complete until an order for possession is made by the competent authority and, therefore, there is no termination of tenancy until an order for possession follows in the process, the matter become beyond the pale of controversy in view of rule 28(5) of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section (10) of section 44 of the Act. Sub-section ( 10) empowers the Staie Government to provide by rules the time when the termination of tenancy will take c.ffcct and rule 28 (5) says that on the granting of the application for possession the tenancy shall stand terminated frmn the commencement of the year following the year in which the application is granted.

It is, therefor!!, clear that the tenancy did not come to an end by the mere service of notice and the filing of. the application by the appellant :1gainst respondent no. 1 under the Tenancy Act. · He was a tenant when the Inam of the ap~llant vested in the State on the 1st of July, I 960. Indisputably, he was in. possession of the land on that date. Consequently he acquired the rights of an occupant under section 6( f) of the Abolition of Inams Act. ·There was no error committed . hy the High Court in deciding this question against the appellnnt.. The High Court was also right in holding that the issue as to the <1c4uiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in tiie earlier proceeding went into the merits of the <1ppclla11t's claim for resumption of the land.

Jt defeated him on the ground that since respondent no .. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Ten<mcy Act had got tc fail. The issue directly and substantially fell for det~rmination in the earlier case. ft was decided against the appellant and he cannot re-agitate the very ~ame question in this proc~edmg. For the n::asons stated above tho appeal fails and is dismissed with costs to Responrcnt No. I above.· P.!-!P. Appeal di.1mi:>sed.