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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle, J.
Himatrao Ukha Mali others ..... Petitioners.
Versus
Popat Devram Patil another .... Respondents.
Writ Petition No. 3343 of 1989, decided on 20-2-1998.
Advocates appeared :
R.G. Karmarkar, for the petitioners.
V.T. Choudhary, for respondent No. 1.
Held, that the agreement of sale in favour of respondent was illegal by virtue of Section 43 (2) of Act and protection of Section 53-A TP Act not available.
The provisions of Section 29 (1) are attracted for claiming repossession of the suit land from the original landlord and the said provisions are not applicable when the repossession of the suit land is being sought from a third persons.
Section 43(1) of the Tenancy Act clearly lays down that the land purchased by a tenant under Section 32-F shall not be transferred by sale etc. without the previous sanction of the collector, whereas subsection 2 of the said section invalidates any such transfer which has been effected without the previous sanction of the Collector. The contract for sale of such land of which the tenant has become the owner will be invalid in view of the provisions of Section 23 of the Contract Act, because it contravenes the provisions of Section 43 (1) of the Tenancy Act. It is therefore, clear that the agreement of sale is illegal by virtue of Section 43 (2) of the Tenancy Act. The Respondent is therefore, not entitled to protection of Section 53-A of the Transfer of Property Act.
Sections 32-G, 32-M, 43 and 84-Contract Act, 1872, Section 23Agreement of sale of land-By tenant right for-Ownership certificate under Section 32-G issued-Held-Section 43 of Act provides complete bar on alienation of agricultural land without previous sanction of collector-Tenant has no absolute right to enter into an agreement-Contract of sale will be invalid under Section 23 of Act as it contravenes the provisions of Section 43 of Act.-In the insta..It case the subject land originally belonged to one Z and late U was a tenant on the tillers day. A certificate of ownership under Section 32-G of the Tenancy Act was issued to him only on 11.6.1971 and it is, therefore, clear that the late U became the owner of the subject land only on 11.6.1971, whereas the agreement of sale in favour of respondent No.1 was signed on 16.3.1961 and also the possession of the suit land was handed over to respondent No. 1 in Marchi April 1961 itself. In view of the law laid down by the Supreme Court in 1992 (3) Born CR 601, this sale in favour of respondent No.1 of the subject land was therefore, invalid. In addition, if, regard be had to the provisions of Section 32-R of the Tenancy Act, if, the purchaser falls to cultivate the land personally, any time after the purchase of the land under the provisions of the Tenancy Act, he shall be evicted and the land shall be disposed of in accordance with the provisions of Section 84-C unless of Course the Collector condones such failure for sufficient reasons. The statutory mandate indicates that even after the ownership certificate is issued under Section 32-G in favour of the tenant, the tenant is required to cultivate the land personally and his failure to do so results in his eviction from the said land. The ownership vested in favour of the purchaser tenant is thus, not absolute but, is conditioned and late U did not have an absolute right to enter into an agreement even after the certificate of ownership under Section 32-G was issued to him. While the Tenancy Act has provided for rights in favour of the tenant, it has also made provisions for the protection of the tenant and ensure that the tenant cultivates the land himself as far as possible. Section 43 has been incorporated in the Act for very good reasons and the Legislature has prescribed a total and complete bar on alienation of the agricultural lands in question without the previous sanction of the Collector. The contract for sale of such land of which the tenant has become the owner will be invalid in view of the provisions of sections of Section 23 of the Indian Contract Act, because, it contravenes the provisions of Section 43(1) of the Tenancy Act. It is, therefore, clear that the agreement of sale on which the respondent No. 1 relies is illegal by virtue of Section 43(2) of the Tenancy Act.
Sections 32-G, 43(2) and 85(1)- Transfer of Property Act, 1882, Section 53-A-Sale of agreement by tenant with respondent No.1 for valuable consideration of Rs. 6,000/- of 5 hectares 13 acres of land-Possession of land handed over by vendee-Agreement of sale registered dismissal of civil suit against respondent No. I-Issuance of ownership certificate under Section 32-G dismissed on the ground of protected possession-Order confirmed by trial Court of protected possession under Section 53-A of Transfer of Property Act-Dismissal of special suit on the same ground-Application under .Section 84, fee summary eviction moved dismissed by SDO holding not a competent sale-Revision under Section 76 dismissed-Writ-Grounds-Landsnot cultivated personally resulted in eviction-Ownership vested in favour of purchaser tenant not absolute-Section 32 not applicable-Agreement without permission under Section 63(1) from Collector invalid-Held-Transfer of subject land invalid and application under Section 84(1) allowed in favour of petition/tenant to hand over benefit possession-Petition allowed.
Section 23-See Bombay Tenancy and Agricultural Lands Act, 1948, Sections 32-G, 32-M, 43 and 84.
Section 53-A-See Bombay Tenancy and Agricultural Lands Act, 1948, Sections 29 and 43.
2.Ukha Hiralal Mali died on 5-8-1980 and the present petitioners who are the heirs of late Ukha Hiralal Mali filed Special Civil Suit No. 67/82 before the Civil Judge (S.D.) Dhule claiming the reliefs of possession of the suit land and the said suit was again dismissed by order dated 14-3-84 on the same ground namely the possession of - respondent No. 1 was protected under section 53-A of the Transfer of Property Act and that the same relief prayed in earlier R.C.S. No. 96/71 was already rejected and the order was confirmed in appeal. While Special Civil Suit No. 67/82 was pending, the petitioners approached the Sub-Divisional Officer, Amalner and filed Tenancy Application No. 16/83 under section 84 of the Tenancy Act for summary eviction of the - respondent No. 1 and restoration of the subject land to them. The S.D.O. directed Tahsildar and Agricultural Land Tribunal, Amalner for recording the evidence and the Tahsildar after making necessary enquiry submitted his report. It was contended by the present petitioners before the Sub-Divisional Officer that the transfer of land to respondent No. 1 was invalid under section 43 of the Tenancy Act and hence, they were entitled for the restoration of land from the respondent No. 1. The Sub-Divisional Officer by his order dated 28-2-84 dismissed the tenancy application on the ground that the transaction between late Ukha Hiralal and the respondent No. 1 was merely an agreement of sale which was not a complete sale based on the sale-deed and hence, the possession of the respondent No. 1 was protected under section 53-A of the T.P. Act. The S.D.O., for arriving at this conclusion, also relied upon the judgment in R.C.S. No. 96/71 as well as Civil Appeal No. 13/74 and held that the findings recorded by the Civil Court were binding on the Tenancy Court and that the transaction between Ukha Hiralal and the present respondent No. 1 was not invalid. The S.D.O. concluded that provisions of section 43 of the Tenancy Act did not come in the way of the respondent No. 1 as it was a case of incomplete sale-deed which was merely a contract of sale.
3.The petitioners filed Tenancy Revision Application No. 103/84, under section 76 of the Tenancy Act against the order passed by the Sub-Divisional Officer in Tenancy Application No. 16/83. By order dated 28-2-1985 the Revision was rejected and the findings recorded by the Sub-Divisional Officer were confirmed. The Maharashtra Revenue Tribunal further held that decision in regular civil suit as well as appeal, as r
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