2001 Supreme(SC) 1362

2001(7) Supreme 438
SUPREME COURT OF INDIA
(From Bombay High Court)
Syed Shah Mohammed Quadri and S.N. Phukan , JJ.
Balchandra Anantrao Rakvi & Ors. -Appellants
versus
Ramchandra Tukaram (dead) by LRs. & Anr. -Respondents
Civil Appeal No. 568 of 1981
With
Civil Appeal No. 6960 of 2001
(Arising out of SLP (C) No. 4897/80)
Decided on 3-10-20001
Counsel for the Parties :
For the Appearing Parties : Anil B. Diwan, V.N. Ganpule, Shanti Bhushan, B.N. Naik, V.A. Mohta, M.S. Nagolkar, Senior Advocates, V.B. Joshi, K. Shrikant Shah, Kavin Gulati, Ms.Nandini Gore, Ms. Pooje, Sanjay Pathak, Manik Karanjawala, R.N. Karanjawala, Shakil Ahmed Syed, D.M. Nargolkar, Mohd.Taiyab Khan, P. Hari, Advocates.

IMPORTANT POINT
The learned single Judge of the Bombay High Court failed to appreciate the distinction between a tenant declared as a deemed purchaser u/s. 32 of Bombay Tenancy and Agricultural Lands Act, 1948 and a tenant who is conferred with a mere right to purchase the land within the specified period of one year and the relevant provisions of Section 88 of the Act.

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948-Sections 2 to 87A and Section 88-Exemption to Govt. lands and other lands-Management on the land in dispute by the Govt. stood terminated on October 1, 1957, the date of notification u/s. 61-Whether by not indicating his intention to avail the right to purchase the land in dispute u/s. 32, conferred on the first respondent (tenant) under clause (b) of the proviso to clause (d) of sub-section (1) of Section 88 of the Act, within the specified period will he lose the right? (Yes)-Effect-1st respondent cannot have the price of land fixed-Appeal partly allowed.

       Held : A plain reading of sub-section (1) of Section 88 discloses that except in cases covered by sub-section (2), which is not relevant here, the provisions of Sections 2 to 87-A shall have no application to cases falling under clauses (a) to (d) thereof. Here, we are concerned with clause (d) which contains an exclusionary clause pertaining to any estate or land taken under management by the State Government under Chapter IV or Section 65 except as provided in the said Chapter IV or Section 65, as the case may be, and in Sections 66, 80-A, 82, 83, 84, 85, 86 and 87. The proviso to clause (d) says that from the date on which the land is released from the management, all the foregoing provisions (Sections 2 to 87-A) shall apply to such land but subject to the modification which applies if a tenancy, not being a permanent tenancy, on that date, subsists in the land. The modification embodies two options - one incorporated in clause (a) of the proviso in favour of the landlord and the other in favour of the tenant embodied in clause (b) of the proviso. The landlord is given an opportunity to terminate the tenancy of the tenant under Section 31 (or under Section 33-B in the case of certificated landlord) within one year from the date of termination of the management of the land by the Government. The opportunity given to the tenant is that he shall have the right to purchase the land under Section 32 (or under Section 33-C in the case of an excluded tenant) within one year from the expiry of the period during which the landlord or the certificated landlord, as the case may be, is entitled to terminate the tenancy as aforesaid. In regard to termination of tenancy by the landlord the provisions of Sections 31 to 33-D (both inclusive) or of Section 33-A or 33-B (in the case of a certificated landlord) shall apply, so far as may be applicable. And the provisions of Sections 32 to 32-R (both inclusive) or Section 33-A or 33-C (in the case of an excluded tenant) shall, so far as may be applicable, apply in regard to the right of the tenant to purchase the land from the landlord. The issue in these cases relates to consequence of non-exercise of the right of the tenant to purchase the land under Section 32, within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy, as postulated in clause (b) of the proviso to clause (d) of sub-section (1) of Section 88 of the Act. It is true that in Section 88, there is no specific provision as to how the tenant should exercise his right to purchase the land under Section 32 of the Act though there is a provision in each of Sections 32-R, 32-O, 33-C and 43-1D of the Act requiring the tenant desirous of purchasing the land, in exercise of the right conferred on him, to give an intimation of his intention to purchase the land to the landlord and the Tribunal within the prescribed period. Here the question that confronts us is : will the absence of a provision prescribing the mode to exercise the right to purchase the land, result in converting a tenant who is entitled to purchase the land into a deemed purchaser of the land under Section 32? The High Court answered the question in the affirmative. For the reasons that follow, in our view, the answer to the question cannot but be in the negative. (Paras 14 & 15)

       A conjoint reading of the aforementioned provisions indicates that where the tenant is treated as a deemed purchaser, the Tribunal shall itself, after the specified dates, determine the price of the land in question and where determination of price of the land is necessitated upon the exercise of option by the tenant to purchase the land, the Tribunal shall do so after receiving the intimation of exercise of the right to purchase the land from the tenant. It is perhaps for this reason that a tenant who enjoys the right to purchase the land under the Act, is obliged to intimate to the landlord and the Tribunal that he is desirous of purchasing the land in exercise of that right. There is no merit in the contention that Section 32 of the Act does not provide for giving any intimation, therefore, a tenant who exercises his option to purchase the land under clause (b) of the proviso to clause (d) of Section 88(1) of the Act, is not required to give any intimation. We have already pointed out above that giving of an intimation is a concomitant of the exercise of the right to purchase the land under Section 32 by the tenant -a right which is conferred on the tenant in specified cases under the Act-and it is only thereafter the tenant becomes a deemed purchaser whereas Section 32, without anything more by the tenant, declares every tenant a deemed purchaser. We are unable to agree with the view that the period of limitation of one year prescribed in the said clause (b) of the proviso, within which the tenant is entitled to purchase the land, is for the purpose of initiating proceeding. In our view, the tenant has to exercise the right to purchase the land and intimate that fact to the landlord and the Tribunal within the prescribed period. After the expiry of that period the exercise of that right by the tenant, if any, will be ineffective. (Paras 21, 22 and 23)

       Consequently held : Respectfully agreeing with the learned law Lords, we hold that in the said clause (b) the right to purchase the land from the landlord cannot be construed as a deemed purchase of the land from the landlord under Section 32 in view of the proviso thereto. (Para 25)

       Held finally : The lands in dispute were taken under the management of the Government under Section 44 of the Act on December 19, 1949, so from that date the provisions of Sections 2 to 87-A did not apply to the lands in dispute. However, from October 1, 1957, when the management of the Government of the lands in dispute was terminated, the tenancy of the first respondent which was not a permanent tenancy was subsisting in the said lands. Therefore from that date, the aforesaid provisions applied thereto but subject to the modification that (i) the appellant had the right to terminate the tenancy under Section 31 till September 30, 1958; and (ii) the first respondent had the right to purchase the lands in dispute under Section 32 till October 1, 1959. For working out the rights of the parties the provisions of Sections 31 to 31-D (both inclusive) and Sections 32 to 32-R (both inclusive), so far as may be applicable, applied to the termination of tenancy or the right to purchase the lands in dispute as aforesaid. Admittedly, the appellant did not terminate the tenancy of the first respondent under the aforesaid provisions before September 30, 1958, therefore, the first respondent had the right to purchase the lands in dispute till October 1, 1959. The first respondent also did not exercise that right and it is a common ground that he did not give any intimation of exercise of the right to purchase the lands in dispute to the landlord and the Tribunal. However, the first respondent filed application under Section 32-G in 1968 for fixation of the price of the lands in dispute. Not having exercised the right to purchase the lands in dispute from the landlord within the statutory period of one year, the first respondent has lost the right to purchase the land in dispute and therefore he cannot have the price of the land fixed under Section 32-G after about 10 years of the expiry of the statutory period. On this aspect the order of the High Court, under challenge, is liable to be set aside. For the afore-mentioned reasons, the order under challenge, to the extent indicated above, cannot be sustained. It is accordingly set aside. The appeals are partly allowed there shall be no order as to costs. (Paras 30 & 31)