The heirs of a deceased tenant are entitled to the benefit of sub-section (1B) of section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, as the tenancy is deemed to be subsisting despite the tenant being out of possession for several years.

Headnote:
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 32(1B) - INTERPRETATION - HEIRS OF DECEASED TENANT - ENTITLEMENT TO STATUTORY PURCHASE - SUBSISTING TENANCY - SECTION 40 - APPLICABILITY.
Fact of the Case:

The deceased tenant, Rama Krishna Kate, was dispossessed of his agricultural land by the landlord, Raghunath Krishna Panchpor, after 15th June 1955 and prior to 1st April, 1957. The Tahsildar started suo motu enquiry under sub-section (1B) of section 32 and directed restoration of the possession to the heirs of the deceased tenant. The Assistant Collector disturbed that order, but the Tribunal allowed the revision application and restored the order of the Tahsildar, Satara.
Finding of the Court:

The court held that the heirs of the deceased tenant are entitled to the benefit of sub-section (1B) of section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, as the tenancy was deemed to be subsisting despite the tenant being out of possession for several years. The court interpreted sub-section (1B) as creating a legislative fiction of the continued subsistence of the tenancy, notwithstanding the tenant's dispossession, to ensure the right of statutory purchase to such tenants who were dispossessed before 1st April, 1957 and were unable to avail of it because of their dispossession.
Issues: Whether the heirs of a deceased tenant are entitled to the benefit of sub-section (1B) of section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948.
Ratio Decidendi: The court held that sub-section (1B) of section 32 of the Act does not create a new tenancy or a new tenancy right, but it only restores the remedy to effectuate the right of tenancy in recognition of its continued subsistence which had become unenforceable due to the expiry of the period of limitation prescribed under section 29 of the Act. The court further held that the provisions of section 29 of the Act are expressly made inapplicable to facilitate such statutory fiction of the continued subsistence of the tenancy, and that the wording of this section referring to the tenant as 'tenant', and applying sections 32-A to 32-R to him on restoration of possession itself implies legislative declaration of such continued sub-sistency.
Final Decision: The court answered the reference in the affirmative, holding that the heirs of any tenant dying during the period are as much entitled to rights under sub-section (1B) as the deceased tenant himself.

JUDGMENT

NAIK J. - This writ petition raises an interesting question as to whether the heirs of a deceased tenant are entitled to the benefit of sub-section (1B) of section 32, of the Bombay Tenancy and Agricultural Lands Act, 1948, here is after referred to ail 'the Act'.

2. The question arises on the following facts:

3. One Rama Krishna Kate was the tenant of four agricultural lands situate at village Venegaon, Tahsil and district Satara. He was dispossessed by the landlord Raghunath Krishna Panchpor, after 15th June 1955 and prior to 1st April, 1957.

4. Sub-section (1B) of section 32 of the Act was inserted by section 2 Sch. of Maharashtra Act No. 49 of 1969, which came into force on 17th October, 1969. Prior to the coming into force of that sub-section, the tenant Ramu Krishna had died. The Tahsildar started suo motu enquiry under sub-section (1B) of section 32 and directed restoration of the possession to the heirs of the deceased tenant Ramu Krishna Kate. That order was disturbed by the Assistant Collector but the Tribunal allowed the revision application and restored the order of the Tahsildar, Satara. This would now enable the heirs to exercise the right of statutory purchase of the said land in terms of sections 32 to 32R of the Act.

5. The correctness and the legality of that Order is challenged by this petition, Special Civil Application No. 330 of 1974.

6. When the matter was, called on for hearing before Pendse J. it appears that reliance was placed for the landlords on the judgment of Chandurkar J. in Madhukar Yeshwant v. Savalram Golivani1, Pendse J. thought that the decision requires reconsideration and as in his opinion, the point involved arises in several cases, it was, desirable, that it should be decided by a Division Bench. The papers were placed before, the learned Chief Justice and that is how the matter bas come before us.

7. Section (1B) of section 32 of the Act which is to be interpreted reads as under:

“(1B) Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April 1957 otherwise than in the manner and by an order of the Tahsildar as provided in section 29 is not in possession of the land on the said date and the land is in possession of the landlord or his successor in interest on the 31st day of July 1969 and the land is not put to a non-agricultural use on or before the last mentioned date then the Tahsildar shall not with standing anything contained in the said section 29 either suo motu or on the application of the tenant hold an inquiry and direct that such land shall be taken from the possession of the landlord or as the case may be his successor in interest and shall be restored to the tenant and thereafter the provisions of this section and sections 32A to 32R (both inclusive) shall in so far as they may be applicable apply thereto subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him Provided that, the tenant shall be entitled to restoration of the land under this sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area.

Explanation: In this sub-section "successor-in-interest" means a person who acquires the interest by testamentary disposition or devolution on death."

8. It was argued by Mr. Abbyankar and Mr. Karandikar for the land-lords that sub-section (lB) of section 32, creates a new right, of tenancy in the land, and statutory purchase thereof with effect from its enforcement on 17-10-1969 and since that right of tenancy was not subsisting when the tenant died, section 40 of the Act was not attracted, and therefore, the heirs of the deceased tenant are not entitled to the benefit of sub-section (1 B).

9. As against that, it is submitted by Mr. Rane, learned advocate for the tenant, that sub-section (1B),

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