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CASE NO.:

Appeal (civil) 568 of 1981

Appeal (civil) 6960 of 2001

PETITIONER:

BALCHANDRA ANANTRAO RAKVI & ORS.

Vs.

RESPONDENT:

RAMCHANDRA TUKARAM (DEAD) BY LRS. & ANR.

DATE OF JUDGMENT: 03/10/2001

BENCH:

Syed Shah Mohammed Quadri & S.N. Phukan

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J.

Leave is granted in SLP(C) No.4897 of 1980.

These appeals, by special leave, arise from the common

judgment of the High Court of Judicature at Bombay in Special

Civil Application Nos.1897 of 1973 and 1901 of 1973 dated

March 15, 1979. In the appeals the appellants-landlords are

common but the first respondent-tenant is different.

To appreciate the question involved in these cases, it will

suffice to refer to the facts in Civil Appeal No.568 of 1981.

The dispute arises under the Bombay Tenancy &

Agricultural Lands Act, 1948 (for short, the Act) and relates

to agricultural lands bearing Survey Nos.661/3, 675/1, 692/1,

693/2, 695/5, 691/1 and 702/2 of village Bhayandar District

Thana, Maharashtra State, out of which an extent of Acres 2 =

31 guntas (hereinafter referred to as, the lands in dispute), is

the subject-matter of Civil Appeal No.568 of 1981. They are

inam lands. The appellants were initially the tenants of the

lands in dispute under the Inamdar. The case of the appellants

is that the first respondent, being their close relative, was

permitted to cultivate the lands in dispute. He, however,

claimed to be the tenant of the lands in dispute. He died during

the pendency of the case before the High Court and his heirs

and legal representatives, respondent Nos.1A to 1J, were

brought on record (hereinafter referred to as, the first

respondent). The second respondent, namely, M/s. Estate

Investment Company (hereinafter referred to as, the

Investment Company) is said to be the purchaser of the lands

in dispute from the Inamdar.

The Act came into force in December 1948. The State

Government assumed the management of the lands in dispute

and announced this fact in R.D.Notification No.4603/45-III (B)

dated December 19, 1949. However, by Notification

No.MGT/2356/20023/M dated October 1, 1957, issued under

Section 61 of the Act, the management of the Government was

terminated. It is a common ground that the lands in dispute

were in possession of the first respondent even when they were

under the management of the Government.

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It appears, in 1968, the first respondent filed an

application under Section 32-G of the Act before the Additional

Tehsildar for fixation of the purchase price of the lands in

dispute. The appellants contested that application on the

ground that it was barred by limitation. It was alleged that

being closely related to them, the first respondent was permitted

to cultivate the said lands and that he was not the tenant of the

lands in dispute. The Investment Company claimed ownership

of the said lands and admitted the tenancy of the first

respondent. The Additional Tehsildar on consideration the

material placed before him found that the first respondent was

not the tenant of the lands in dispute and that he had not

exercised his option to purchase them within the time permitted

by clause (b) of the proviso to clause (d) of sub-section (1) of

Section 88 of the Act therefore he had lost the right to purchase

them. On April 15, 1970, on those findings, he dismissed the

application; however he also ordered that the name of the

Investment Company be removed from the village records.

Against that order of the Additional Tehsildar the first

respondent and the Investment Company filed T.A.No.51/70,

52/70, 68/70 and 69/70 before the Sub-Divisional Officer,

Thana Division, (appellate authority under the Act). On

September 25, 1971, while allowing the appeals, the appellate

authority held the first respondent to be the tenant of the lands

in dispute and ordered that the name of the second respondent

be restored in the column of other rights in the revenue

record. However, it declined to consider the effect of the first

respondent not exercising the right to purchase the lands in

dispute within one year under the afore-mentioned provision

treating that aspect as irrelevant. The order of the appellate

authority was assailed by the appellants in two revisions

(T.A.Nos.107 & 108 of 1972) before the Maharashtra Revenue

Tribunal. The Tribunal took the view that after the termination

of the management of the lands in dispute by the Government

the first respondent being a tenant became the deemed

purchaser as such the question of exercise of option to purchase

the lands in dispute by him did not arise. In that view the

Tribunal dismissed the revisions by a common order passed on

December 6, 1972, which was assailed by the appellants in the

afore-mentioned special civil applications in the High Court.

Holding that all the foregoing provisions (Sections 2 to 87-A)

of the Act applied to the lands in dispute on release from the

management of the Government; that the first respondent was

the tenant and it was not necessary for him to give an intimation

with regard to the exercise of the right to purchase the lands in

dispute under clause (b) of the first proviso to clause (d) of

Section 88(1) of the Act, either to the landlord or to the

Tribunal, within the period specified therein, the High Court

dismissed both the applications by a common order of March

17, 1979. That order is brought under challenge by the

appellants in these appeals.

Mr. Anil B.Diwan, the learned senior counsel appearing

for the appellants, contended that mere declaration that the first

respondent was the tenant would not make him a deemed

purchaser of the lands in dispute and that the High Court had

gone beyond the scope of the lis in the application in creating

the rights of a deemed purchaser in the first respondent.

Section 88(1)(d) of the Act, submitted Mr.Diwan, was not

properly construed by the High Court and therefore the order,

under challenge, was liable to be set aside. Mr.V.N.Ganpule,

the learned senior counsel appearing for the appellant in the

connected appeal while adopting the arguments of Mr. Diwan,

argued that the first respondent, not having intimated his option

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to purchase the lands in dispute within the specified time of one

year under the first proviso to clause (d) of sub-section (1) of

Section 88 of the Act, had lost the right to purchase the lands.

Mr.Shanti Bhushan, the learned senior counsel appearing

for the Investment Company, disputed the entitlement of the

first respondent to purchase the lands in dispute without

exercising option to purchase the land within the specified

period. He fairly conceded that the rights of the appellants and

the Investment company could not be decided in these appeals.

He submitted that he was arguing the case on the footing that

the management of the Government stood terminated on the

date of notification under Section 61 of the Act issued on

October 1, 1957 and prayed that no observation on merit in

regard to the entitlement of the company which would prejudice

the rights of the Investment Company, might be made by this

Court.

Mr.V.A.Mohta, the learned senior counsel appearing for

the first respondent, canvassed the claim of the first respondent

in both the appeals. He contended that the first respondent who

had been in possession of the lands in dispute from 1930-1940

became the deemed purchaser from the date when the

management of the Government of the lands in dispute came to

an end on October 1, 1957. He argued that clause (b) of

proviso to Section 88(1)(d) of the Act did not provide as to how

the tenant should exercise option to purchase the land while

other provisions like Sections 35-F, 32-O specifically contained

a provision for exercising the right to purchase the land by the

tenant. He emphasised that Section 32 of the Act did not speak

of the tenant giving any intimation of purchasing the lands in

dispute to the landlord and the Tribunal and there was no

mention of Section 88(1) in Section 32-P of the Act. According

to the learned counsel the intention of the legislature is to make

the tenant a deemed purchaser under Section 32 of the Act from

the Tillers Day or some other date as specified therein. He

pleaded that the view taken by the High Court was being

consistently followed by a catena of decisions and if this court

were to take a different view of the matter, it would unsettle the

legal position in the State of Maharashtra.

Mr.D.M.Nargolkar, the learned senior counsel appearing

for the respondent in the connected appeal, while supporting the

stand taken by Mr. Mohta, submitted that Section 88 of the Act

was not referred to in Section 32-P and that after the Act came

into force the tenant could not remain a mere tenant of the land

for all times to come; he must either become a purchaser under

the scheme of the Act or would cease to be a tenant of the land.

At the outset we make it clear that the parties have

proceeded on the assumption that the management of the land

in dispute by the Government stood terminated on October 1,

1957 -- the date of notification under Section 61 of the Act.

On the above contentions of the learned counsel, the

interesting and important question that arises for our

consideration is :

Whether by not indicating his intention to avail

the right to purchase the lands in dispute under

section 32, conferred on the first 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?

Since the resolution of the question under consideration

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depends upon the true interpretation of the last mentioned

provision, it will be necessary to quote Section 88 here :

88. Exemption to Government lands and

certain other lands.

(1) Save as otherwise provided in sub-section (2),

nothing in the foregoing provisions of this Act

shall apply, --

(a) to (c) *** *** ***

(d) to an 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 section 66,

80A, 82, 83, 84, 85, 86 and 87 :

Provided that from the date on which the land is

released from management, all the foregoing

provisions of this Act shall apply thereto; but

subject to the modification that in the case of a

tenancy, not being a permanent tenancy, which on

that date subsists in the land -

(a) the landlord shall be entitled to terminate the

tenancy under section 31 (or under section

33B in the case of a certificated landlord)

within one year from such date; and

(b) within one year from the expiry of the

period during which the landlord or

certificated landlord is entitled to terminate

the tenancy as aforesaid, the tenant shall

have right to purchase the land under section

32 (or under section 33C in the case of an

excluded tenant) ; and

(c) the provisions of sections 31 to 31D, both

inclusive (or sections 33A and 33B in the

case of a certificated landlord) and sections

32 to 32R, (both inclusive) (or sections 33A

and 33C in the case of an excluded tenant)

shall, so far as may be applicable, apply to

the termination of a tenancy or the right to

purchase the land, as aforesaid :

Provided further that,

(a) in the case of a permanent tenancy the

permanent tenant shall be entitled to

purchase the land held by him on

permanent tenancy, --

(i) within one year from the date on

which the estate or land is released

from management, or

(ii) where such estate or land was

released from management after

tillers day but before the

commencement of the Bombay

Tenancy and Agricultural Lands

(Amendment) Act, 1960, within one

year from such commencement

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and

(b) where such permanent tenant is desirous of

exercising the right conferred on him under

this proviso, he shall accordingly inform

the landlord and Tribunal in the prescribed

manner within the said period of one year

and the provisions of sections 32 to 32R

shall, so far as may be applicable, apply to

the right of the permanent tenant to

purchase the land.

(2) If any land held on lease from Government

or any part thereof --

(i) and (ii) *** *** ***

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-F, 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

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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.

The scheme of the Act as could be gathered from its

relevant provisions, is to give effect to the policy land for the

tiller by clothing all the tenants with the right of ownership of

the lands cultivated by them personally. A two-fold strategy is

adopted in the Act - first, by making every tenant a deemed

purchaser of the land personally cultivated by him under

Section 32 of the Act and secondly, by conferring on the tenant,

in specified cases, the right to purchase the land from the

landlord, under Section 32 of the Act, held by him under

personal cultivation.

The cases falling under the first category, namely,

treating the tenant as a deemed purchaser, are noted hereunder :

(1) under sub-section (1) of Section 32, every tenant shall be

deemed to have purchased from his landlord the land held by

him as a tenant with effect from April 1, 1957 which is referred

to as, the Tillers Day; (2) under the first proviso to sub-

section (1) of Section 32 providing that a tenant shall be

deemed to have purchased the land with effect from the

postponed date; (3) under the second proviso to sub-section (1)

of Section 32 making the tenant a deemed purchaser of the land

with effect from April 1, 1958; (4) a tenant is treated as a

deemed purchaser of the land from the date mentioned in the

following provisions : (i) under clause (a) of sub-section (1A)

of Section 32 of the Act, (ii) under clause (b) of sub-section

(1A) of Section 32 of the Act, (iii) under sub-section (1B) of

Section 32 of the Act, and (iv) under Section 32-I; (5) in cases

where Section 88-C applies the tenant is treated as a deemed

purchaser from a date different from the Tillers Day : (i) under

sub-section (1) of Section 33-C with effect from April 1, 1962,

(ii) under proviso to sub-clause (iii) of sub-section (1) of

Section 33-C, the deemed purchase of the land by the tenant

will come into effect with effect from different dates mentioned

therein; (iv) under clause (a) of sub-section (2) of Section 33-C,

and (v) under clause (b) of sub-section (2) of Section 33-C.

In contra distinction to the deemed purchase from the

landlord of the land held by the tenant under his personal

cultivation under different provisions, referred to above, the

cases falling under the second category speak of the right of the

tenant to purchase the land from the landlord under Section 32

in the following cases : (1) under Section 32-F, (2) under

Section 32-O, (3) under sub-section (3) of Section 33-C which

relates to an excluded tenant; (4) under proviso to sub-section

(3) of Section 33-C; (5) under sub-section (1) of Section 43-1D;

(6) under clause (b) of the proviso to clause (d) of sub-section

(1) of Section 88 of the Act; and (7) under sub-section (2) of

Section 88-D.

Obviously, the content of these two rights - right to

purchase the land and the right to own the land as a deemed

purchaser - is entirely different. A tenant who is given a right

to purchase from the landlord the land held by him for personal

cultivation cannot be equated with a tenant who is declared to

be the deemed purchaser of the land held by him. In the former

case till the tenant exercises his right to purchase the land

within the specified period and fulfills the requirements of the

relevant provisions of the Act, he remains a tenant only; while

in the latter case until the deemed purchase of the land becomes

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ineffective under the relevant provisions of the Act, he remains

an owner being a deemed purchaser of the land. Just as the

right of the landlord to terminate the tenancy in the absence of

exercise of the right within the specified period, cannot result in

automatic termination of the tenancy so also the right to

purchase from the landlord the land held by the tenant in the

absence of exercise of the right within the specified period by

the tenant, will not result in an automatic deemed purchase of

the land by the tenant. Further by not exercising the right to

terminate the tenancy within one year the landlord forfeits his

right and in the same way by not exercising his right to

purchase the land from the landlord, the tenant will also lose his

right. He cannot by his default acquire a better position of a

deemed purchaser. It would, therefore, be incorrect to hold that

on the landlord not terminating the tenancy within the

prescribed period, the tenant will be deemed to have exercised

his right to purchase the land and became a deemed purchaser.

It is apposite to note here that clause (c) of the proviso to

clause (d) of sub-section (1) of Section 88 lays down, inter alia,

that provisions of Sections 32 to 32-R shall, so far as may be

applicable, apply to the right to purchase the land under the said

clause (b). In our view, it hardly makes any difference whether

the provision of clause (c) of the proviso to clause (d) of sub-

section (1) of Section 88 is incorporated in clause (b) thereof or

is enacted as a separate clause. Be that as it may, we shall refer

to Section 32-F and Section 32-O whereunder an identical right

is conferred on the tenant. Each of the said sections contain

sub-section (1A) which says that a tenant desirous of exercising

the right conferred on him, namely, the right to purchase the

land under Section 32, shall give an intimation in that behalf to

the landlord and the Tribunal in the prescribed manner within

the specified period. A harmonious construction of the

aforementioned provisions leads to the conclusion that giving

of an intimation to the landlord and the Tribunal is a

concomitant of the exercise of the right to purchase the land by

the tenant even though the requirement of giving such

intimation is not embodied in clause (b). The purpose

underlying the requirement of giving of the intimation is that

the landlord who is vitally affected by the exercise of the right

to purchase the land from the landlord is made aware of the fact

of purchase of the land by the tenant and the Tribunal which has

to fix the price of the land, should take steps for that purpose.

From a perusal of Section 32-G, it may be noticed that

the Tribunal is entrusted with the duty of determining the

purchase price suo motu as soon as may be either after the

Tillers Day or after the postponed date. There is no provision

in Section 33-G for a tenant to invoke that provision for

determination of the purchase price of the land by filing an

application for that purpose. 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

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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.

It is next contended that after the Act has come into force

no person can remain a tenant of the land; he must either

become the owner of the land or the land has to be disposed of

in the manner provided in Section 32-P and in as much as

Section 32-P does not refer to Section 88(1), the first

respondent must be treated as a deemed purchaser. We are

afraid we cannot accept the contention. In our view the premise

itself is not correct. In cases falling under Section 37, a tenant

remains a tenant as no deemed purchase or right to purchase is

conferred on him under the said provision. Even otherwise

merely because Section 88(1)(d) is not included in Section 32-

P, it does not follow that the first respondent will become the

owner of the lands in dispute even when he fails to comply with

the requirements of clause (b) of proviso to clause (d) of sub-

section (1) of Section 88. In our view, the High Court is not

correct in holding that when the landlord fails to terminate the

tenancy the proviso to Section 32 will be attracted and the

tenant automatically becomes a deemed purchaser. Such a

conclusion runs counter to the express words of clause (b) of

the proviso to clause (d) of sub-section (1) of Section 88 set out

alone. It says that within one year from the expiry of the period

during which the landlord or certificated landlord is entitled to

terminate the tenancy as aforesaid, the tenant shall have the

right to purchase the land under Section 32 (or under Section

33-C in the case of an excluded tenant). The words the tenant

shall have the right to purchase land under Section 32 are plain

and lucid. Literally construed they speak that the tenant has the

right to purchase the land. By importing an analogy from the

contents of the proviso to Section 32, the said words cannot be

read as the tenant shall be deemed to have purchased the land

under Section 32. This would be nothing but substituting the

provision in the enactment, which is clearly impermissible. In

West Derby Union vs. Metropolitan Life Assurance Co. [(1897)

AC 647], Lord Herschell (as he then was) observed :

I decline to read into any enactment words which

are not to be found there and which would alter its

operative effect because of provisions to be found

in any proviso

Relying on the said dicta Lord Goddard in Bretherton vs.

United Kingdom Totalisator Co. Ltd. [(1945) 2 All.E.R. 202]

held :

A proviso is not to be construed as an enacting

provision enabling something to be done which is

not to be found in the statute itself.

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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.

It will not be out of place to refer to Section 88 of the

Gujarat Act which is in pari materia with Section 88 of the

Maharashtra Act. By amending proviso to clause (d) of sub-

section (1) of Section 88 of the Gujarat Act the words shall be

deemed to have purchased were substituted for the words

shall have the right to purchase. The amended provision will

yield the desired result of making the tenant a deemed

purchaser of the land from the landlord under Section 32 on the

expiry of the period during which the landlord is entitled to

terminate the tenancy under Section 31 of the Act.

The correct way to understand a proviso is to read it in

the context and not in isolation. We may with advantage refer

to the following observations of Moulton L.J. in R. vs. Dibdin

[1910 Probate 57] :

The fallacy of the proposed method of

interpretation is not far to seek. It sins against the

fundamental rule of construction that a proviso

must be considered with relation to the principal

matter to which it stands as a proviso. It treats it as

if it were an independent enacting clause instead of

being dependent on the main enactment. The

courts, as, for instance, in Ex p. Partington [(1844)

6 Q.B. 649]., Re Brocklebank [(1889) 23

Q.B.D.461], and Hill v. East and West India Dock

Co. [(1884) 9 App.Cas.448], have frequently

pointed out this fallacy, and have refused to be led

astray by arguments such as these which have been

addressed to us, which depend solely on taking

words absolutely in their strict literal sense,

disregarding the fundamental consideration that

they appear in the proviso.

Thus read, it becomes explicit that sub-section (1) of Section 32

declares every tenant a deemed purchaser from April 1, 1957

and the provisos thereto in the circumstances mentioned therein

modify the date mentioned in sub-section (1) from which the

tenant will be a deemed purchaser. The said proviso can have

no application to clause (b) of the proviso to clause (d) of sub-

section (1) of Section 88.

If this be the true interpretation of clause (d) read with

the proviso to sub-section (1) of Section 88 the fact that a

different interpretation has prevailed for quite sometime in the

State of Maharashtra, is no ground not to give effect to the

correct position in law. Though it was urged that in various

decisions the High Court held that the right to purchase the land

under clause (d) of the proviso was treated as a deemed

purchase, only one judgment of the High Court which could be

secured by us is the one relied upon by the High Court in the

impugned order, Rambhau Keshav Mhatre vs. Kashinuth

G.Patil [Tenancy Law Reporter Vol.XIX (1971) at page 84].

We have perused that judgment. The question before the

High Court was whether Section 32-O applied to the lands

which were released from the management of the Government.

It was held that the tenancy was subsisting on the date of

cessation of Government management so Section 32-O did not

apply and by virtue of the proviso to Section 88(1)(d) the

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provisions with regard to purchase of the land automatically

applied under Section 32 of the Act and, therefore, the fixation

of price under Section 32-G followed as a matter of course. It

appears to us that the learned Judge failed to appreciate the

distinction between a tenant declared as a deemed purchaser

under Section 32 and a tenant who is conferred with a mere

right to purchase the land within the specified period of one

year and also the relevant provisions of Section 88 of the Act.

For the above reasons we cannot endorse the interpretation of

the said provision by the learned single Judge of the Bombay

High Court.

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.

..........................J.

(Syed Shah Mohammed Quadri)

..........................J.

(S.N. Phukan)

October 03, 2001

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