The doctrine of constructive res judicata applies to proceedings where a party fails to raise a contention that ought to have been raised as a ground of defence, and such omission bars the party from reagitating the question in subsequent proceedings.

Headnote:
TENANCY - BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 43-A(3) - NOTIFICATION - VALIDITY - SECTION 43-C - AMENDMENT - EFFECT - RES JUDICATA - CONSTRUCTIVE RES JUDICATA - APPLICATION.
Fact of the Case:

The dispute pertains to the question as to whether the orders passed by the tenancy authorities under the Bombay Tenancy and Agricultural Lands Act, 1948, directing that the tenant should hand over possession of Serial No. 708/2 situate at Kadamwadi are void and without jurisdiction of the tenancy authorities.
Finding of the Court:

1. The notification under section 43-A(3) is valid and prevails over the provisions of section 31 of the Act. 2. The amendment of section 43-C in 1977 does not affect the validity of the proceedings initiated under the notification prior to the amendment. 3. The tenant's contention that the application filed by the landlord under the notification was bad from its inception or that the proceeding has abated after 1977 is not maintainable. 4. The tenant's failure to raise the contention that the notification was not applicable to the lands within the Municipal limits before the tenancy authorities and in the subsequent proceedings constitutes a bar of constructive res judicata.
Issues: 1. Whether the notification under section 43-A(3) is valid and prevails over the provisions of section 31 of the Act? 2. Whether the amendment of section 43-C in 1977 affects the validity of the proceedings initiated under the notification prior to the amendment? 3. Whether the tenant's contention that the application filed by the landlord under the notification was bad from its inception or that the proceeding has abated after 1977 is maintainable? 4. Whether the tenant's failure to raise the contention that the notification was not applicable to the lands within the Municipal limits before the tenancy authorities and in the subsequent proceedings constitutes a bar of constructive res judicata?
Ratio Decidendi: 1. The notification under section 43-A(3) is valid as it is an exception to the provisions of section 31 and is not inconsistent with the unamended provisions of section 43-C. 2. The amendment of section 43-C in 1977 does not affect the validity of the proceedings initiated under the notification prior to the amendment, as the saving provisions in section 6 of the amending Act are made with respect to the repeal of section 43-D and not section 43-A(3). 3. The tenant's contention that the application filed by the landlord under the notification was bad from its inception or that the proceeding has abated after 1977 is not maintainable, as the tenant failed to raise this contention before the tenancy authorities and in the subsequent proceedings, which constitutes a bar of constructive res judicata. 4. The tenant's failure to raise the contention that the notification was not applicable to the lands within the Municipal limits before the tenancy authorities and in the subsequent proceedings constitutes a bar of constructive res judicata, as the tenant ought to have raised this contention as a ground of defence in the tenancy proceedings.
Final Decision: Both the writ petition and the civil revision application are dismissed with costs.

JUDGMENT - B.C. GADGIL, J.:---These two proceedings arise out of a dispute between the landlord and the tenant. The dispute pertains to the question as to whether the orders passed by the tenancy authorities under the Bombay Tenancy and Agricultural Lands Act, 1948, directing that the tenant should hand over possession of Serial No. 708/2 situate at Kadamwadi are void and without jurisdiction of the tenancy authorities. In order to understand the controversy, it would be necessary to refer to certain facts over which there cannot be any dispute at this stage. Instead of referring to the parties as the petitioners and the respondents, it would be more convenient to refer to then by names.

2. Ramrao Pawar (who died pending the tenancy litigation and whose legal representatives are the petitioners in both these petitions) was a tenant of Serial No. 709/2. This land is within Municipal limits. Shankar Alrekar (who is respondent No. 1 in these matters) is the landlord. The land was let out to Ramrao Pawar for cultivation of sugarcane. Shankar filed an application being Tenancy Case No. 3 of 1975 against Ramrao Pawar for possession of this land. He made this claim on the strength of the provisions of section 43-A(3) read with the notification issued by the Government under sub-section (3). In the later part of the judgment it would be necessary to consider the provisions of this section as also of sections 43-C and 43-D of the Tenancy Act and hence I would like to reproduce the relevant portion of these provisions herein as follows :---

"43-A(1) The provisions of sections 4-D, 8, 9, 9-A, 9-B, 9-C, 10-, 10-A, 14, 16, 17, 17-A, 17-B, 18, 27, 31 to 31-D (both inclusive), 32 to 32-R (both inclusive), 33-A, 33-B, 33-C, 43, 63, 63-A, 64 and 65, shall not apply to ---

...... ........ ......... ......... ......... .......

(b) leases of land granted to any bodies or persons other than those mentioned in Clause (a) for the cultivation of sugarcane or the growing of fruits of flowers or for the breeding of livestock ;

........... .......... .......... ........ .......... .........

(3) Notwithstanding anything contained in sub-sections (1) and (2), it shall be lawful for the State Government to direct, by notification in the Official Gazette.

"that the leases or lands, as the case may be, to which the provisions of sub-sections (1) and (2) apply, shall be subject to such conditions as may be specified in the notification, in respect of---

(a) the duration of the lease;

(b) the improvements to be made on the land and the formation of co-operative farming societies for that purpose and financial assistance to such societies;

(c) the payment of land revenue, irrigation cess, local fund cess and any other charges payable to the State Government or any local authority; or

(d) any other matter referred to in sections mentioned in sub-section (1).

"43-C. Nothing in sections 32 to 32-R (both inclusive), 33-A, 33-B, 33-C and 43 shall apply to lands in the areas within the limits of---

(a) Greater Bombay,

(b) a Municipal Corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949,

(d) a Municipal district constituted under the Bombay District Municipal Act, 1901,

(e) a cantonment, or

(f) any area included in a Town Planning Scheme under the Bombay Town Planning Act, 1954;

.... .... ... ... ... ...

"43-D(1) in the areas specified in section 43-C, notwithstanding anything contained in sections 31 to 31-D (both inclusive) a landlord may terminate the tenancy of a tenant (other than a permanent tenant) in respect of any land with effect from the 31st day of May of any year by giving the tenant three months notice in writing, if the landlord bona fide requires the land for any non-agricultural purpose;

Provided that the three months' period of such notice shall expire before the 31st day of May of such year.

"(2) The provisions of sections 29, 37 and 39 shall mutatis mutand

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