Damodar Ganpat Wani,& Anr. v. Rajaram Dhondu Wagh & Ors.

Judgment

1068. DAMODAR GANPAT WANI,& ANR. v~\\. RAJARAM DHONDU WAGH & ORS. July ,28, 1978 .. MlraTAZA·F~L Au,_JAsWANT ·SINGH ,\Ni)R.' S. PATHAK, JJ,] 4 Borizbay Tenancy and Agricultural Lands Act, 1948~ Sections 32. 34, 34(2A), 37(1) and SS(lA)-Scope of. Pursuaiit tO ProceediiigS~UD.der s. -34 of the BOmbaY Ten.in.Cy and AgriCultural Lands, Act..'.1948,· the first appellant, the landlord, obtained 'possession of agri· cultural land from the tenant on June 14, 1960.. On April 2; 1964 he executed a registered sale deed transferring the land to the second appellanL On January 2, 196S the first respondent, Rajaram Dhondu Wagh; a son of the· original · tenant, -applied to the Extra ·Awai Karkun of Jamner under s. 37 of the Tenancy:Act against the appellants for.possession.of the land on the ground that the first appellant had sold· the land . to· the ' second appellant before the cxpiry of .12 years from the date be had been put into possession. The applica.· tion was allowed.

On appeal by the appellants the Collector set aside the order of tho Extra Awai Karlrun and held that having regard to s. 88(1A) of tho Tenancy Act Rajaram Dhondu Wagh could not be described as a tenant entitled to hold the land under s. 34 of the Tenancy Act. ~-On revision_ application by the respondents the ~Iaharashtra Revenue Tribunal set aside the order of the Collector and awarded possession of the land to the respandents, holding that the respondents were tenants. -The appellants sought relief under Art. 227 of the Constitution before the Bombay High Co~ bot the petition was,summarily rejected Qy an order dated June 17, 1968. - That or<ler was challenged in appeal by special leave. Dismissing the appeal, the Court HELD ; J. Section 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant and if a tenant fell within the misc:hief of Section 88(1A); the.landlor~ on making.out a case under Section 34(1) was exempt from the restrictions on his rights imposed by sub-section (2) and (2A) o{ Section 34 because. the rights or privileges conferred on th• tenant by those sub-sections were no longer -available to him by reason of Scction'88(1A).

[1071 F-GJ Section 340) of the Tenancy Act entitles the landlord to terminate tho tenancy of the protected tenant by giving him one year's notice in •writing, if the landlord bona fide requires the land for ~ltivating personally •. Section 34(2-A) qualifies the landlord's right to terminate the tenancy by certain conditiont,. and one of the them is that if the land held by the landlord is more than · tho agricultnral holding in area, tho right of the landlord t<> terminate the tenancy of the piotected tenant must t: limited to ·an area which 1houtd, after inch termination. leave with the tenant half the area of the land leased. . That condition confers a right ·or privilege on the tenant to retain half the area of the land 1,ased notwithstanding that a case 11as· been made out -by the landIOrd under seellon 34(1) for termination of the tenancy.

Section 88(1A) provides that a protected tenant, whose name .stands entered .as an owner in the record - of rights o'n the-first day of January 1952 in respect of ;:t.nY land lifty acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenan4 shall not be r entitled to any rights or privileges conferred on a protected tenant by the provisions of section 32 or 34. What section 88(1A) does is to deprive the protected tenant of the rights and privileges -conferred on him by section 32 or 34. It docs nothing more. Consequently. the Hght or privilege which the tenant enjoyed under section 34(2-A), that is to say, the retention of possession of halr the area of the land leased was los4 and in the result the landlord became entitled to possession of the entire land leased. (1071 C-F] GANPATWANI v. DHONDUWAGH (Pathak, ].)

The Jardlcrd oi.,:ai:io: tis right to terminate the tenancy of a protected tenant ·under Se·· · , 34(!) ot ~--:: Act and that is what happened in this case. The first app~u.w.t \.>-';.;.s ab;c: to terminate the tenancy because of Section 34(1). [1071 HJ langa Baoji },,fali v. Nasarat Jahan-·Begum and Ors. I.L.R. 1958 Bomb~y 571; approved. . 2.

Section 37(1) of the Act comes into l'lay after the stage ·of terrrUnation of the tenancy because of Section 34(1). ·Section 37(1) declares that .. if after the landlord tales possession of the land after~ the termination of the tenancy under section 34~ he fails to use it for_ any of the purposes specified in the notice given under sub-section (1) of section 34 within one year -from the date on "'hich he took Possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant.whose tenancy was· terminated by him .•••••••• ;.:.•. ·.[1072 A-BJ The first appellan4. in the inst~nt CaSe~ .aftC;-. having taken p~sse;~ia'n' pf the land on termination of the tenancy under section 34, ceased to use it for any - 'c of the purposes mentioned in the notice within twelve years from' June· 14.' 1960 the date on \Vhich he took possession. '.

He sold it to the second. appellant· on April 2, 1964 _and transferred possession to him. The possession of the second appellant cannot be regarded as the -p<>ssession of· the- .first appellant, and the conclnc;ion must be that the default mentioned in section 37(1) toot· place and the respondents became ·entitled -to possession ·of the land. The : respondents are entitled to possession-of the land subject, of course, to·any limitationsplaced by the law in regard to their holding. 11072 C·D] CML· APPELLATE JURISDICTION ; Civil Appeal No~ 243 of 1969 •. Appeal by Special Leave from the· Judgment and Order dated 17-6--68 of the Bombay High Court in S.C.A. !'lo, .1090 of 1968. · S. K. Mehta for the Appellants. R. B. Datar and Miss Parbhat Qadari · for Respondents · to (d), 2, 4, and 6. Ex-parte aiamst Respondents 3, 5 and 7 • l(a) .

The Judgment of the Court was delivered by . • ~ PATHAK, J.~This. appeal by special leave is directed against the order of the High Court of Bombay dated June 17; 1968 summarily rejecting a petition under Article 227 of the Constitution. · A parcel of land, 11 acres 8 gunthas in areas; situated in village Shingayat in· Jamner taluka of Jalgaon district belonged originally to Damodar Ganpat Wani. Dhondu Namdeo Wagh was his tenant. In 1954, the landlord served a notice on the tenant uncler·section 34 cl. the Bombay Tenancy and Agricultural Lands Act of 1948 (hereinafter referred to as 'the Tenancy Act') calling upon him to deliver possession of the· land as he required it for his personal cultivation. The tenant refused to comply. The. -landlord then filed· · Tenancy Application No. 61 of 1956 before the Tenancy Awai Karkun at Jamner. The Tenancy Awai Karkun allowed '.the application and made an order terminating the tenancy· and restoring the land to the landlord.

The tenant appealed. to the District Deputy Collector, Chalisgaon Division. On June 20, 1957, the District .Deputy Collector made an order awarding possession of half the land to the landlord and permitting the. other half to remain with· the tenant. The tenant applied in revision before the Bombay Revenue Tribunal; The Tribunal passed an order dated November 8, .1957 framing an issue on the point whether tbe tenant was at all entitled to hold the . (1978] 3 S.C.R • land in dispu~e 'under' sections 32 and 34 of the Tenancy Act inasmuch as he personally cultivated land of his own exceeding the ceiling area of 50 acres. He remanded the case to the District Deputy Collecto.r for decision on the merits.

On remand, the District Deputy Collector held that. the tenant owned more than· 50 acres of land on January 1, 1952 and, therefore, was not entitled under section 88(1A) of the Tenancy Act to the rights and privileges conferred by sections 32 and 34 of the said Act, By bis order dated January 31, 1959, he directed that the landlord be put .in possession of the · entire land. The tenant challenged the order .in revisiori, and the revision application. ·was dismissed by the Tribunal on April 30, .1959 .: A review application by the tenant was also dismissed by the Tribunal A petition under·Article 227 of the Constitution.filed by _the.temint in the 'High Court was summarily dismissed. Durin.g the pend~ncy of the petiiion in the. High Co~ the tenant, Dhondn .Namdeo Wagh, died and bis legal representatives, the present .respondents, where brought on the record. Meanwhile, in execution proceedings possession of the land was delivered to the landlord on June.14, 1960.

On April 2, 1964, the landlord executed a registered sale deed transferring the. land to Ramdas Bhika Pardeshi. . On ·January 2, ·1965, _the rust respondent, · Rajaram Dhondu Wagh,. a son of the original tenant, filed Tenancy Application No. 52 ·of 1965 before the Extra Awai Karkun of Jamner under section· 37 of" the Tenancy ACt against the landlord and Ramdas Bhika_ Pardeshi alleging that the landlord bad sold the land to Ramdas Bhika Pardeshi before the expiry of the period of twelve years from June 14, 1960, when he had been put into p6ssession. The Extra Awai Karkun made an order dated November 30, 1965 permitting the respondents to recover possession . of· the land from Pardeshi. The landlord . and Pardeshi appealed to the Collector of Jalgaon, and on December 5, .1966 the Collector allowed the appeal and set aside the order of the Awai Kark\In.: He held tliat having regard to section.

88(1A) of the Tenancy Acf Rajaram Dhondu Wagh could not be described .as tenant of the. land and was not entitled to hold it under section 34 of the, Tenancy.Act: .He allowed Pardeshi to·remain.in possession, Against the order of the Collector, the .. respondents. filed.a revision application·before theJ\faharashtra Revenue Tribunal. The. Tribunal, .OJ) January 22,:19.68, set aside the. ·.orderof the. ·CollectOr.·and a.warded possession of the land.to the.respondents. It found that.the respondents were. tenants and could hold the land in that capacity G.. unde.c section ·_34. of the.· Tenancy. Act. " The. appellants. then sought :relief under ·Article 227 of the.

Constitution. in the High Court; .but tlie: petitionwas summarily rejected by an.order dated· June 17, 1968. -- -T)lat order i• under challenge in this appeal. .. .;:'.In it; order dated._January 22, 1968-allowing the -r~~isio~ ~ppli: cation, the Tribunal. held that the substantive right of the landlord to·obtain possession of the. land.frolJI .the tenant must be founded in £ection 34 of the Tenancy Act and not in section .88(1A) of the Act, and what section 88(1A) did was merely to withdraw. the privileges granted .t~ the tenant under section 34 _to. obtain possess~on of half the 1 '-·-~ • .._,I j I ./ GANPATWANI v. DHONDUWAGH _(Pathak, /.) ~Q7 l_ land, thus enabling the first appellant to obtain possession of the entire land and that as thepossession was taken by the first appellant for bonc1 fuie personal cultivation, it was open to the erstwhile tenant or his sons, the respondents, to apply under section 37 read with section 39 of the Tenancy Act for possession of the land.

The Tribunal also held that section 88(1A) did not bring to an end the status_of the -tenant as a protected tenant. It also rejected the submission that as the second appellant was cultivating the land. it should be taken that the :cultivatio'! was on behalf of the first appellant. '

We have u"o hesitation )n -diSmlssing this appeal - Section 34 (1) of the Tenancy Act entitles the landlord to terminatethe: tenancy ol the protected tenantby giving_ him one year's notice in writing, if the_ landlord bona fide requires the land for - cultivating _ personJ!lly. &ction :34(2-A) qualifies the landlord's righ(. to - tellJlinate _ the tenancy ·by-:certain conditions,- and one of _them is that if the land held by-the -landlord is more than the agricultural holding in areas; the ·right of the landlord to terminate thetenancy of the protected tenant must be limited to an area which should, after such ·termination, leave with the tenant half the area of the land leased. - The condition confersi right -or -privilege on the tenant to retain halfthe area of the land leased notwithstanding that a case has 15cen made out by the landlord under section 34(1) for _termination of the tenancy.

Section 88(1A) provides that "a protected tenant, whose name stands entered as an owner in the record of rights on the first day of January 1952 in respect of any land fifty acres or more of Jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant, shall not be entitled to any rights or privileges conferred on a protected tenant by the provisions of section 32 or 34." What section 88 (IA) does is to deprive the protected tenant of the rights and privileges conferred on him by section 32 or 34. It does nothing more- Consequently. the right or privilege which the tenant enjoyed under l;ection 34(2-A), that is to say, the retention of possession of half the area of the land leased was lost, and in .the result the landlord became entitled to possession of the entire land leased.

That section 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant was affirmed ·by a Full Bench of the Bombay Hi£h Court in lan~a Baoji- Mali v. Nasarat lahan Begum end Others(') and it was declared that if a tenant fell within - the n.ischief of section 88(1A), the landlord, on making out a case under section 34(1), was exempt from the restrictions on his rights imposed l·y sub-sections (2) and (2-A) of section 34 because the rights or privileges conferred on the tenant by those sub-sections were no !0ngcr available to him by reason of section 88(1A). It is beyoml dispute that the landlord obtains his right to terminate the tenancy ofa protected tenant under section 34(1) of the Act, and that is what happened in this case. The first appellant was able to terminate the tenancy because of section, 34(1 ). That brings into play section 37(1) of the Act Section 37(1) declared that "if after the (l)

LL.R.1959 Bombay, 571_ 1072 • landlord ·takes possession of the land after· the . termination of the - tenancy under section 34, he fails to use it for any of the purposes specified in the notice given under sul>-section (1) of section 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such po~session, the landlord shall· forthwith restore possession• of •the land to the tenant whose tenancy was terminated by him ; • ; • ; •• ~ ". It is clear from the record that the first appellant after having taken possession of the land on termination of the tenancy under section 34, ceased to use it for any of the purposes mentioned in the notice within · twelve years from June.14, 1960 the date ·on which he took possession; ·He sold it to the second appellant on April 2, .1964 and transferred -possession to him.

The possession "of the second appellant cannot be regarded as· the possession· of the first appellant, and the conclusion· must be · that the defaiilt mentioned in section 37(1) took place and the respondents became entitled to possession of the land. The respondents ar« entitled to possession of the land sul;lject of course, to any limi~ tations placed by_ the law in regard to their holding. ·-_-~ • · c The appeal "!ail~ and is dismissed with costs. S.R. · ·: _Appeal dismissed.