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Judgment
Rule. Rule made returnable forthwith and taken up for final disposal with consent.
The Petition filed under Article 227 of the Constitution of India takes exception to the judgment and order dated 24th November, 2022 passed by the Maharashtra Revenue Tribunal, Mumbai [for short, “MRT”] in TNC/REV/THN/106/19 by which the revision application of the Respondents came to be allowed upsetting the order dated 24th January, 2019 passed by the Sub-Divisional Officer and restoring the order of Tahsildar dated 21st October, 1971.
The order of Tahsildar dated 21st October, 1971 was an inquiry under Section 32-G of the Maharashtra Tenancy and Agricultural Lands Act, 1948 [for short, “Tenancy Act”] filed by the Respondent No 1(since deceased) for fixation of purchase price, which was allowed and purchase price came to be fixed. In the year 2016, the Respondent No. 1 applied to Talathi to give effect to order of 21st October, 1971 in revenue records. The Talathi submitted a report on 26th February, 2016 to the Tribunal and vide order dated 26th September, 2016, the Tribunal directed the Talathi to give effect to the order of 1971 in the record of rights, pursuant to which Mutation Entry No 2881 came to be mutated. An objection was raised by Petitioner (since deceased) to the Mutation Entry No. 2881 being Dispute Case No. S. R. No. 24 of 2017, which came to be rejected by Tahsildar by order dated 24th October, 2017 and the mutation entry came to be approved.
In the interregnum, the Respondent No. 1 paid the purchase price and Section 32M certificate was issued on 6th October, 2017 in favor of Respondent No. 1. The Petitioner filed Tenancy Appeal No 28 of 2017 before the Sub Divisional Officer (SDO) challenging the order passed under Section 32G of Tenancy Act as well as the rejection of the Petitioner’s objection to the mutation entry no 2881. By order of 24th January, 2019, SDO allowed the Tenancy Appeal quashing and setting aside the Mutation Entry No 2881 and the order dated 21st October, 1971.
Being aggrieved by the order of 24th January, 2019, passed by the Sub-Divisional Officer, the Respondent No. 1 filed the revision application before the MRT, which came to be allowed. Hence, the present Petition.
Mr. Misar, learned counsel appearing for Petitioner would submit that the finding of MRT about the Respondent No 1’s cultivation of the suit property since prior to 1971 is contrary to the Respondent No. 1’s application for fixing the purchase price where it is pleaded that the name of Petitioner is entered into 7/12 extract as ordinary tenant. He would point out that the application seeks deletion of the name of the Petitioner and inquiry under Section 70(b) of the Tenancy Act to be carried out for the purpose of mutating the name of Respondent No 1. He submits that there is an admission that the Petitioner’s name appears in the revenue records. He would further point out that the crop cultivation column reflects the name of the Petitioner and would submit that in such circumstances, it was necessary for the Petitioner to be impleaded as party to the proceedings.
Drawing attention to the order of SDO, he submits that the SDO has considered the 7/12 extracts and as well as the crop cultivation column to note that from 1948-1949 till 1976-77, the name of the Petitioner is reflected in the revenue records, which would obstruct the Respondent No 1’s application under Section 32G of the Tenancy Act. He would further point out that the SDO rightly noted that principles of natural justice were not followed. He would further point out the finding of SDO that there was no challenge to the entries reflecting the Petitioner’s name in revenue records. He submits that the Petitioner’s tenancy is not terminated and the Petitioner’s legal heirs are still cultivating the subject land and the purchase price could not have been fixed in favour of Respondent No 1.
Per contra, Mr. Khan, learned counsel appearing for the Respondents would submit that in the year 1962, an inquiry was conducted under Section 32G in respect of the suit land by the Agricultural Lands Tribunal (ALT). He would point out the order of the ALT noting that the landlords were minors on tiller’s day and in view of the said fact, the Petitioner’s right to purchase the land was postponed till 10th July, 1964. He would submit that the Petitioner has suppressed the fact in the Tenancy Appeal, that in 2017, the Petitioner had filed proceedings challenging Mutation Entry No. 2881 which was rejected by Tahsildar. He would further point out that the entries in the revenue records, on which the reliance has been placed, is prior to the year 1964 and 7/12 extract itself records that the right to purchase the land has been postponed till 10th July, 1964. He would submit that the right available to the Petitioner under Section 32F(1)(a) was not enforced and stands extinguished. He submits that prior to 1969, no notice was required to be given by the landlord to the tenant of attaining majority.
Mr. Khan would submit that Section 32G provides for notices to be issued to the tenants, the landlords and all other persons interested therein and uses the expression “as far as practicable” calling upon them to appear on the date specified in the notice. He submits that as the right was not exercised by the Petitioner, there was no requirement of impleading the Petitioner in the Section 70(b) application in the year 1971. He submits that the right of the Petitioner lapsed in the year 1964 and in the year 1971, he had no right in the subject land. He would further point out that the landlord was impleaded as party by the Respondent No 1 and had given statement in favour of the Respondent No 1 and therefore, Section 32M certificate came to be issued. He would submit that the challenge to the order of 1971 before the SDO was after considerable delay.
He submits that the mutation entry no. 343 makes it clear that the right to purchase was required to be exercised in the year 1964 and even if the notice would have been issued, no stand could have been taken by the Petitioner. In support, he relies upon the following decisions : Gorakh s/o Bhagwan @ Ganpati Jaybhay vs. Sub-Divisional Officer1 Dhagu Ram Gade through POA Kisan alias Krushna Dhague Gade (Jagtap) vs. Sadashiv Krishna Gade (deceased)2 Sagaru Laxman Shinde vs. Mukund Shankar Kurlekar3 Ujwala Rajiv Dalvi vs. State of Maharashtra4 Vasant Ganpat Padave (deceased) through LRs vs. Mahadev Sawant (deceased) through LRs5 Vishwas Laxman Bhagat vs. Devendra Gana Bhagat6
In rejoinder, Mr. Misar would contend that the consequence of inaction under Section 32F is found in Section 32P and where the right is not exercised by the tenant, the power vests in the Tribunal to dispose of the land in accordance with the statutory provisions of Section 32P including issuing a direction that the former tenant be summarily evicted. He submits that no such inquiry was held by the Tribunal and the tenancy of the Petitioner continued and therefore, in 1971, the Petitioner was a necessary party. He submits that the order of SDO specifically records that the delay has been condoned and as there is no challenge to the delay condonation, the delay cannot be raised as a defence. He would submit that as the tenancy of the Respondent No 1 was subsequent to the tiller’s day, the applicable provisions, if any, would be Section 32O and not Section 32P.
I have considered the submissions and perused the record.
The submissions and the record would indicate the undisputed fact that the Petitioner’s right to purchase the suit land was postponed to 10th July, 1964 in view of the landlord’s minority. The Respondent No 1’s application in the year 1971 before the Tahsildar was under Section 32G of Tenancy Act seeking fixation of purchase price claiming to be in cultivation since the last 25 years. Under Section 32 of Tenancy Act, on the first day of April, 1957, every tenant shall be deemed to have purchased from his landlord, the land held by him as tenant. Section 32G casts a duty on the Tribunal, as soon as may be after the tillers day, to publish or cause to be published a public notice calling upon all tenants who have deemed to have purchased the lands, landlords and all other other persons interested to appear before it on the date specified in the notice. The provisions of Section 32G determining the purchase price would apply to all tenants, who under Section 32, are deemed to have purchased the land, which is referable to the tillers day i.e. 1st April, 1957.
The submissions of Mr. Khan substantiated by the revenue records and the order of ALT dated 3rd January, 1962 undisputedly admit of the Petitioner’s tenancy on tillers day. The Respondent No 1’s application seeking fixation of purchase price is premised on the Respondent No 1 being in cultivation on tillers day, which basis is contrary to the records and the Respondent No 1’s own submissions. The application seeks an inquiry under Section 70(b) as to the Respondent No 1’s tenancy and deletion of the Petitioner’s name from the revenue records.
There was sufficient material on record before the Tahsildar to indicate that the Petitioner was cultivating the suit land on tillers day. The crop cultivation column reflects the name of the Petitioner and the names of the heirs were subsequently mutated in the revenue records which entries were subsisting and not challenged by the Respondent No 1. The 7/12 extract reflects that the purchase by the Petitioner was postponed as the landlord was a minor. The justification canvassed before this Court for non impleadment of Petitioner by reason of failure to exercise the right on postponed day was not the pleaded case before the Tahsildar. The Tahsildar was therefore concerned with the determination of purchase price in respect of the suit land, of which the revenue records, demonstrated cultivation by the Petitioner on tillers day. There is no finding of Tahsildar that the right of Petitioner stood extinguished as the same was not exercised within the prescribed period. The mutation entries records the names of the Petitioner and thereafter the names of the heirs of Petitioner, which mutation entries serve as presumptive evidence of possession and being in possession, the Petitioner had a right to be heard in the proceedings under Section 32G filed by the Respondent No 1. The reliance placed by Mr. Khan on the use of the expression “as far as practical” in relation to sub clause (c) of Section 32G(1) as regards all other person interested overlooks the fact that Section 32G can be invoked only by tenants entitled to deemed purchase under Section 32G.
The Tahsildar failed to notice that the right to purchase was deferred till 10th July, 1964 and that there was no termination of tenancy by the landlord under Section 31 or order of Tribunal under Section 32P. The question is not about the stand which would be available to the Petitioner to oppose the 1971 application, but the fact that as the Petitioner’s name was reflected in the revenue records and as the Respondent No 1 sought deletion of the Petitioner’s name, the Petitioner was bound to be affected by the outcome of the Respondent No 1’s application and ought to have been impleaded as party to the proceedings irrespective of whether the Petitioner had lost the right to purchase the land for failing to exercise the right within the prescribed period.
As the record admittedly evidences the tenancy of the Petitioner on tillers day, the question that comes to the fore is the consequence of failure on part of the Petitioner to exercise the right of purchase on postponed date i.e. 10th July, 1964. Section 32F(1)(a) provides that where landlord is a minor, the tenant shall have the right to purchase such land under Section 32 within one year from expiry of period within which the landlord is entitled to terminate the tenancy under Section 31 of Tenancy Act. Sub section (1A) of Section 32F provides that a tenant desirous of exercising the right under Sub section (1) shall give an intimation in that behalf to the landlord and the Tribunal within the specified period. There is no submission by Mr. Misar that the Petitioner had exercised the right within the specified period. Even assuming default in payment of purchase price, the consequence thereof would be Section 32P of the Tenancy Act, which deals with the power of the Tribunal to resume and dispose of the land not purchased by the tenant. Sub-section (1) of Section 32-P provides that the Tribunal may suo motu or on an application made by the concerned party, resume and dispose of the tenanted land, where the purchase has become ineffective, by reason of failure to exercise the right under Section 32F by the tenant after holding a formal enquiry in this behalf. There is nothing in Section 32P to suggest that the tenant who fails to exercise the right to purchase the land held by the tenant within the period prescribed under Section 32F ceased to be a tenant. The statutory scheme of Section 32P does not provide for ipso facto re-vesting of land in the landlord or the subsequent tenant and the power is vested in the Tribunal to dispose of the land in manner provided by Sub section (2) as regards eviction of the former tenant, surrender of the land to the former landlord or dispose of by sale to any person in accordance with the order of priority. It is after the orders were passed by the Tribunal under Section 32P that the tenancy of the Petitioner would cease to exist. No such proceedings have been initiated in the present case. There is no eviction of the Petitioner and no surrender of the land to the landlord. As the default on part of Petitioner would empower Tribunal to resume the land, the Tahsildar could not have determined the purchase price of the suit land. Viewed from any perspective, the order of Tahsildar of year 1971 fixing purchase price in favour of Respondent No. 1 was a clearly erroneous order as the records demonstrated cultivation by Petitioner on tillers day.
The undisputed fact of postponement of Petitioner’s right to purchase the land till 1964, would indicate that the Petitioner was a protected tenant of the suit land and therefore, at the highest, the cultivation of the suit land by Respondent No. 1 would be post the tiller’s day and the tenancy which would be created would be under Section 32O. Section 32-O(1) of the Tenancy Act provides that in respect of any tenancy created after the tiller’s day by landlord, the tenant cultivating personally shall be entitled within one year from the commencement of the tenancy to purchase from the landlord, the land held by him or such part thereof as will raise the holding of the land to the ceiling area.The Respondent No 1 did not apply under Section 32O for purchase of land, which would require the sale to be conducted for the purpose of raising the tenant’s holding to the ceiling area, assuming for the moment that despite Section 32P, the right vested in the landlord to created tenancy in favour of Respondent No 1.
The SDO considered the documentary evidence and noted that as per the Mutation Entry No. 340 dated 10th June, 1956, the name of the Petitioner’s pre-decessor was entered as protected tenant and mutation entry no. 563 dated 22nd December, 1962 records that as the landlord is a minor, the right to purchase is deferred till 10th July, 1964. It further noted the subsequent mutation of legal heirs of the Petitioner and that the name of the Petitioner was reflected in the revenue records till the year 1976-77 and despite thereof, the purchase price was fixed in favor of Respondent No. 1 and that no opportunity of hearing was given to the legal heirs of the deceased protected tenant. It further noted that entries in favor of Petitioner and the legal heirs has not been challenged and as on the date of passing of the order, the name of the Petitioner’s legal heirs is reflected in 7/12 extract.
Based on the material, which was produced on record, the SDO had rightly noted that the crop cultivation column shows the cultivation by the Petitioner’s predecessor prior to tiller’s day and therefore, the Petitioner was required to be impleaded in the proceedings in the year 1971.
The MRT was swayed with the fact of issuance of Section 32M certificate in favour of the Respondent No 1 without noticing the relevant facts, which would militate against fixing of purchase price in favour of Respondent No 1 who was admittedly not cultivating the land on tillers day. The fact that the Petitioner took recourse to other properties for remittance of purchase price is immaterial as the foundation of the Respondent No 1’s application was contrary to the statutory provisions. The MRT came to an erroneous finding that the Petitioner had not challenged the order rejecting the Petitioner’s opposition to the Mutation Entry No 2881, whereas the challenged before the SDO was to the order of 1971 as well as the Mutation Entry No 2881 and there was specific relief sought of quashing and setting aside the mutation entry.
The decision in the case of Gorakh s/o Bhagwan @ Ganpati Jaybhay vs. Sub-Divisional Officer (supra) was pressed into service to contend that the conduct of the Petitioner in suppression of material facts would disentitle the Petitioner from claiming any relief. There is no quarrel with the said proposition, however, in the present case, the order of SDO makes it clear that the challenge was also to the Mutation Entry No. 2881 and it is recorded in order of SDO that Petitioner had disputed the mutation entry.
In the case of Dhagu Ram Gade through POA Kisan alias Krushna Dhague Gade (Jagtap) vs. Sadashiv Krishna Gade (deceased) (supra) the Co-ordinate Bench of this Court was considering an Appeal against order passed under Section 32G. In that case, the order under Section 32G was passed on 17th October, 1961 and the Appeal came to be filed only in the year 1999. The SDO condoned the delay as against which the Tribunal confirmed the order leading to the Petition before the Co-ordinate Bench. It is in that factual scenario that this Court considered the provisions of Section 5 of the Limitation Act for the purpose of construing sufficient cause. In the present case, the order of SDO indicates that on 6th October, 2017, the delay came to be condoned which was not challenged by the Respondents, and therefore, it is now not open for the Respondents to raise submissions on delay.
In the case of Sagaru Laxman Shinde vs. Mukund Shankar Kurlekar (supra), the Co-ordinate Bench was considering the issue as to whether the amendment of 1969 to Section 32F(1)(a) casts an obligation on the landlord to give intimation of attainment of majority to the tenant. The Co-ordinate Bench after considering the law on the said issue held that there was no obligation on part of the landlord to give intimation to the tenant about the landlord attaining majority. There is no quarrel with the position of law enumerated in the said decision, however, in that case the ALT had held that the purchase of tenanted land had become ineffective and directed initiation of proceedings under Section 32P of the Act for resumption and disposal, which is not the case here.
In the case of Ujwala Rajiv Dalvi vs. State of Maharashtra (supra), the Co-ordinate Bench of this Court held that the mutation entry is effected for fiscal purpose would not have any bearing on the orders passed by ALT fixing purchase price under Section 32G and consequent issuance of Section 32M certificate in favour of the tenants. In the present case, the relevancy of the mutation entry is for the reason that the mutation entry indicates that the Petitioner was a protected tenant cultivating the land prior to the tillers day and the decision is clearly distinguishable.
The decision in the case of Vasant Ganpat Padave (deceased) through LRs vs. Mahadev Sawant (deceased) through Lrs (supra) interpreted the position pre and post 1969 amendment with which there is no quarrel.
In the case of Vishwas Laxman Bhagat vs. Devendra Gana Bhagat (supra), the Hon’ble Division Bench of this Court held that the principles of natural justice cannot be put in a strait jacket and unless some genuine prejudice is shown to have been caused by non-observance of such principle, the decision arrived at by the authorities cannot be quashed or vitiated. In the present case, by reason of the order of ALT , the purchase price has been fixed in favour of the Respondent No. 1 though the Petitioner claims to be in possession and in cultivation of the land. There is no proceeding under Section 32P initiated by the Tribunal, and no eviction of the Petitioner and resultantly, the issuance of Section 32M certificate causes prejudice to the Petitioner.
As the Petitioner was not impleaded as party to the proceedings before the Tahsildar, there was no consideration of the statutory provisions and rights of the Petitioner. It would therefore be appropriate if the matter is remanded to the Tahsildar to be decided afresh by hearing all the parties and in light of the observations of this order.
In view of the above discussion, the impugned order dated 24th November, 2022 is hereby quashed and set aside. The enquiry application is remitted to the Tahsildar to be decided afresh after giving an opportunity of hearing to all the Petitioners herein and the Respondents and in light of the observations in the present order.
Petition is allowed. Rule is made absolute in the above terms.
At this stage, request is made for stay of this order for a period of four weeks. The request is opposed by learned counsel for the Petitioner. The order is stayed for a period of four weeks.