2003 Supreme(Bom) 1099

Bombay High Court
(September 19, 2003)
Kana Bala Patil
Versus
Usha Gopal Hiranandani

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 31 and 32-P - Proceedings under Section 32-P of Tenancy Act. - If landlord participated in proceedings under Section 32-P of Act, he cannot make grievance that proceedings under Section 32-P of Act were incompetent. - The other contention raised on behalf of the petitioner is that the application was essentially filed on the ground available under Section 31 of the Act, whereas the authority proceeded to treat the same under Section 32-P of the Act. As observed earlier, this contention has been raised for the first time before this Court. If that is so, it is not necessary to address on this matter, because the petitioner not only appeared in the proceedings, but, later on, also filed appeal and, even then, no such grievance was made. If the petitioner has participated in the proceedings, which was clearly treated as one under Section 32-P of the Act by the authorities, at this stage in writ petition, the petitioner cannot be permitted to make grievance that the proceedings under Section 32-P of the Act were incompetent. It is not the case of the petitioner that the authority, which has decided the application, had no jurisdiction to entertain and try that application. If that is so, no fault can be found with the authority for having treated the application as one under Section 32-P of the Act. For the aforesaid reasons, there is no substance even in this objection.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 32-G, 32-P and 84(c) - Purchase of land by tenant. - Failure of tenant in possession of land to exercise option under Section 32-F(1)(a) of Tenancy Act, renders purchase of land by him ineffective. - The analogy in respect of purport of Section 84(c) of the Bombay Tenancy and Agricultural Lands Act, 1948 cannot be pressed into service for deciding the proceedings under Section 32-P of the Act. The purpose of invoking Section 84(c) is entirely different, where the action is initiated in respect of unauthorised transfer or acquisition, whereas, in the present case, the possession of the tenant cannot be said to be unauthorised as such, but the tenant is only denuded of his right to purchase the suit lands by virtue of the statutory provisions, having failed to send intimation within the prescribed period, expressing his willingness to purchase the suit lands. In such a case, although the tenant is denuded of his right to purchase, that does not mean that his possession is per se unauthorised. In such a case, the question of restricting the remedy under Section 32-P of the Act requiring the landlord/landlady, as the case may be, to institute application for possession within specified time does not arise. The original landlady died in the year 1980 and thereafter proceedings under Section 32-G were commenced by the petitioner, which ultimately culminated on 24th July, 1986 with the decision of the Tahsildar holding that the purchase has become ineffective and the petitioner was not entitled to purchase the suit lands. It is only thereafter the respondent could have taken recourse to the proceedings under Section 32-P of the Act and which was so resorted to on 16th September, 1987 by filing a formal application. If that is so, the question of application not being filed within reasonable time does not arise at all.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Section 32-P - Proceedings under Section 32-P of Act. - Cultivation of land personally by landlord cannot be a basis for deciding proceedings under Section 32-P of Tenancy Act. - It was contended that the respondent is doctor by profession and she would not cultivate the lands personally, which is expected from the respondent after taking over possession of the suit lands. This submission clearly overlooks that the proceedings were treated as one under Section 32-P of the Act. In such proceedings, the requirement or obligation of the landlord to cultivate personally does not arise and cannot be the basis for denying relief to the landlord. Moreover, it is common ground that during the pendency of this writ petition, the respondent has already taken over possession, of the suit lands in terms of the impugned judgment and order passed by the "Tribunal; as no say was operating on account of dismissal of the writ petition in default. Nothing is placed on record before this Court to show that the respondent has not cultivated the lands personally. In any case, that cannot be the basis for deciding proceedings under Section 32-P of the Act.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 32-P and 32-G - Proceedings under Section 32-P of Act. - Proceedings initiated by landlord under Section 32-P of Act, after proceedings under Section 32-G of Act became final, were on consequential on basis of that finding. - Insofar as the merits is concerned, it is seen that the Tribunal has found that the appellate authority exceeded jurisdiction in not only interfering with the order passed in the subject application, but also the order passed in the earlier proceedings under Section 32-G dated 27th July, 1986, which was, in fact, allowed to attain finality. No fault can be found with this reason assigned by the Tribunal. The basis on which the appellate authority has proceeded is, therefore, inappropriate and clearly in excess of jurisdiction. If that is so, the Tribunal was well within its jurisdiction to remedy that mischief, which was manifest and would have caused serious miscarriage of justice. The Tribunal has also found that the earlier proceedings under Section 32-G having been allowed to become final, the findings recorded therein would bind the parties. No fault can be found even with that reasoning. Once the said findings would bind the petitioner, it would necessarily follow that the proceedings under Section 32-P were only consequential on the basis of that finding. In this proceeding, it was not open to the petitioner to once again contend that he has exercised his right within the statutory period provided under Section 32-F of the Act. In the circumstances, no fault can be found either with the approach or the conclusion reached by the revisional authority.