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PETITIONER:

JANBA (DEAD) THROUGH LRS

Vs.

RESPONDENT:

SMT. GOPIKABAI

DATE OF JUDGMENT: 06/04/2000

BENCH:

S.S.Ahmad, M.B.Shah

JUDGMENT:

Shah, J.

The question involved in this appeal is with regard to

the interpretation of Section 50(1) of Bombay Tenancy and

Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter

referred to as the Tenancy Act) which inter alia provides

that where tenancy is created after 01.4.1963, every tenant

holding land under such tenancy and cultivating it

personally shall be entitled to purchase during one year

from the commencement of the tenancy so much of such land as

he may be entitled to purchase under Section 41 and the

provisions of Sections 41 to 44 shall mutatis-mutandis apply

to such purchase. For this purpose, as provided under

Section 43 he is required to make an offer to the landlord

stating the price at which he is ready to purchase the land

and such price shall not exceed 12 times the rent payable by

him. It is the contention of the appellant-tenant that as

the respondents-landladies were widows, his right to

purchase the land is postponed under Section 41(2) of the

Tenancy Act till their disability ceases. As against this,

the High Court of Bombay by impugned judgment dated

05.7.1985 in Special Civil Application No.792/1975 held that

Section 41(2) would not be applicable in case of purchase

specified under Section 50. That judgment and order is

challenged by filing this appeal.

Before dealing with the contentions raised by the

learned counsel for the appellant it is to be stated that

during the proceedings, respondent No.1, Smt. Radhikabai

widow of Laxmanrao Wanjari had expired. Civil Misc.

Petition No.19711 of 1986 was filed for deletion of her name

stating that Radhikabai had expired leaving behind no person

as her legal heir. Her name was deleted at the risk of the

appellant vide Courts order dated 15.3.1999 made in the

said CMP.

For deciding the question involved, we would first

mention a few facts of the case. On 16.1.1967 respondents

who were widows of one Laxmanrao Wanjari applied to the

Tehsildar, Kelapur for a declaration that the appellant

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herein was not a tenant of the land bearing Survey Nos.1/1,

2 acres 28 gunthas and 3/1A, 6 acres 39 gunthas of village

Hirapur and his possession of the land was illegal and in

the alternative for possession under Section 50 of the

Tenancy Act as the tenant had not exercised his right of

purchase within one year from the commencement of the said

provision. The appellant contended that the respondents

being widows, his right to purchase stood postponed for two

years after the cessation of interest of the respondents in

view of Section 41(2) of the Tenancy Act. The matter was

considered by various authorities and ultimately reached the

High Court in Special Civil Application NO.505 of 1969. The

High Court remanded the matter to the Tehsildar for fresh

decision. After remand the Tehsildar vide order dated

22.2.1972 held that the appellant was tenant since 1964-65

and that he was not entitled to purchase the said land till

after the expiry of two years from the cessation of interest

of the widow, hence the application was rejected. In

appeal, the Appellate Authority vide its order dated

31.12.1973 held that the appellant had never been a tenant

and directed the respondents to seek appropriate remedy for

restoration of possession. The Tribunal by order dated

31.12.1974 allowed the revision by restoring the order

passed by the Tehsildar and holding that the respondents

being widows, the question of extension of time and deemed

surrender did not arise at all. The Tribunal further held

that since the respondents had not preferred application

within six months of the accrual of the cause of action, the

application was time barred. Against the said order,

Special Civil Application NO.792 of 1975 was filed before

the High Court. In the High Court, it was the contention of

the appellant that Section 41(2) would be applicable in

respect of tenancies to which Section 50 of the Tenancy Act

applied. Hence, as the landladies were widows, the right to

purchase would stand postponed for two years after the

cessation of interest of the widows. On the other hand,

counsel for the respondents submitted that Section 50 of the

Act was a complete Code in itself and the provisions of

section 41(2) regarding postponement of the right to

purchase would not apply. The learned Single Judge of the

High Court held that the claim for declaration that the

appellant was not a tenant was barred by limitation and

decided the matter by holding that the tenancy was created

after 1.4.1963. The learned Single Judge also held that in

the facts of the case, Section 50 would be applicable. On

the question whether section 41(2) of the Act applied to

such tenancies, the learned Judge referred the matter to the

Division Bench of the High Court. The Division Bench by the

impugned order dated 5.7.1985 held that Section 50 is a

complete Code in itself and that the provisions of Section

41(2) would not be applicable to such tenancies. The Court

held that the right to purchase having not been exercised by

the appellant within one year from the date of tenancy, the

respondents were entitled to delivery of possession.

For proper understanding of scheme of Section 50 and

its interpretation, it is necessary to refer to relevant

parts of Sections 41, 42, 43, 46, 49A and 50 of the Tenancy

Act.

Section 41. Right of tenant to purchase land. (1)

Notwithstanding anything to the contrary in any law, usage

or contract but subject to the provisions of Section 42 to

44 (both inclusive) a tenant other than an occupancy tenant

shall, in the case of land held by him as a tenant, be

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entitled to purchase from the landlord the land held by him

as a tenant and cultivated by him personally.

(2) Where the landlord is of the following category,

namely: --

(a) a minor,

(b) a widow,

(c)

(d) a person subject to any physical or mental

disability,

such tenant shall be entitled to purchase the

landlords interest under this section after the expiry of

two years from the date on which

(i) the landlord of category (a) attains majority,

(ii) ... (iii) the landlord of category (d) ceases to be

subject to such disability, and (iv) the interest of the

landlord of category (b) in the land ceases to exist:

Section 42. Extent of land which tenant may purchase

under section 41.The right of a tenant under section 41 to

purchase from his landlord the land held by him as a tenant

shall be subject to the following conditions, namely:--

(a) if the tenant does not hold any cultivate

personally any land, as a tenure-holder the purchase of the

land by him shall be limited to the extent of three family

holdings;

(b) if the tenant holds any cultivates personally any

land as a tenure-holder the purchase of the land by him

shall be limited to such area as will be sufficient to make

up the area of the land held by him as a tenure-holder to

the extent of three family holdings.

Section 43 provides for the procedure for the tenant

to make an offer, determination of purchase price, mode of

payment, etc

Section 43(1) to (14)

Section 43(14-A)--If a tenant fails to exercise his

right of purchase under Section 41 in respect of any land or

the purchase of any land becomes ineffective, the land shall

be deemed to have been surrendered to the landlord, and

thereupon the provisions of sub-sections (1) and (2) of

Section 21 and Chapter VII shall apply to such land as if

the land was surrendered by the tenant under section 20.

Section 44 deals with the amount of purchase price to

be applied towards the satisfaction of debts.

Section 46. Transfer of ownership of land to tenants

from specified date. (1) Notwithstanding anything in this

Chapter or any law for the time being in force or any

custom, usage, decree, contract or grant to the contrary,

with effect on and from the first day of April, 1961, the

ownership of all lands held by tenants which they are

entitled to purchase from their landlords under any of the

provisions of this Chapter shall stand transferred to and

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vest in, such tenants and from such date such tenants shall

be deemed to be the full owners of such lands:

Provided that if on such date any such tenant is of

the following category, namely;-

(a) a minor, (b) a widow, (c) a serving member of the

armed forces, or (d) a person subject to any physical or

mental disability,

the ownership of the land shall stand transferred

(i) to the tenant on the expiry of one year from the

date on which the tenant of category (a) attains majority,

the tenant of category (c) ceases to serve in such force,

the tenant of category (d) ceases to be subject to such

disability; and

(ii) in the case of a widow to her successor-in-title

on the expiry of one year from the date on which the widows

interest in the land ceases to exist:

Provided further that where in respect of any such

land, any proceeding under section 19,20, 21, 36 or 38 is

pending on the date specified in sub-section (1) the

transfer of ownership of such land shall take effect on the

date on which such proceeding is finally decided and the

tenant retains possession of the land in accordance with the

decision in such proceeding.

Section 49(A). Ownership of certain lands to stand

transferred to tenants on Ist day of April, 1963. (1)

Notwithstanding anything contained in section 41or 46, or

any custom, usage, decree, contract or grant to the contrary

but subject to the provisions of this section, on and from

the 1st day of April, 1963 the ownership of all land held by

a tenant (being land which is not transferred to the tenant

under section 46 or which is not purchased by him under

Section 41 or 50) shall stand transferred to and vest in

such tenant who shall, from the date aforesaid, be deemed to

be the full owner of such land, if such lands is cultivated

by him personally, and

(i) the landlord has not given notice of the

termination of tenancy in accordance with the provisions of

sub-section (1) of section 38 or section 39 or sub-section

(2) of section 39A; or

(ii) the landlord has given such notice but has not

made an application thereafter under section 36 for

possession as required by those sections; or

(iii) the landlord (being a landlord not belonging to

any of the categories specified in sub-section (2) of

section 38 has not terminated the tenancy on any of the

grounds specified in section 19; or has so terminated the

tenancy but has not applied to the Tahsildar on or before

the 31st day of March, 1963 under section 36 for possession

of the land:

Provided that, where the landlord has made such

application for possession then the tenant shall, or the

date on which the application is finally decided be deemed

to be the full owner of the land which he is entitled to

retain in possession after such decision.

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Section 50. Rights of tenants holding land under

tenancy restored or created after specified date to purchase

land. (1) Where a tenancy is restored under Sections 7, 10,

21, 52 or 128A or is created by a landlord not being a

landlord within the meaning of Chapter III-A in any area

after the date specified in sub-section (l) of section 49A,

every tenant holding land under such tenancy and cultivating

it personally shall be entitled to purchase within one year

from the commencement or as the case may be, the restoration

of the tenancy so much of such land as he may be entitled to

purchase under section 41and the provisions of section 41 to

44 (both inclusive) shall mutatis mutandis apply to such

purchase.

At this stage we would mention that Section 50 of the

Tenancy Act as applicable to Vidarbha region is consistently

interpreted by the High Court since years as stated in the

impugned judgment. The learned Single of the Bombay High

Court in Govinda v. Udhao and Others [1972 Mh.L.J. 588]

considered the scheme of Sections 41 to 50 and pointed out

that Section 50 as it stood prior to its amendment as

enacted in December 1958 was as under: - 50. Right of

tenant holding land under tenancy created after specified

date to purchase land: - In the case of a tenancy created

in any area after the date specified in sub-section (1) of

section 46, every tenant holding land under such tenancy and

cultivating it personally shall be entitled to purchase

within one year from the commencement of the tenancy so much

of such land as he may be entitled to purchase under section

41 and the provisions of sections 41 to 44 (both inclusive)

shall mutatis mutandis apply to such purchase.

The Court observed that in its original form the

tenancies which were covered by section 50 were those which

were created after 1.4.1961 because that was the date on

which there was a statutory transfer of ownership in favour

of certain tenants who were entitled to purchase land under

section 41 of the Tenancy Act. It may be stated that

section 43 did not contain sub- section (14A) initially and

the concept of a deemed surrender of land which is contained

in Section 43(14A) did not become relevant prior to

12.2.1962 when sub-section (14A) was for the first time put

on the Statute book by Act NO.2 of 1962. Section 50 was

first amended by Maharashtra Act 5 of 1961 and sub-section

(2) was added to that section. Section 50 was then again

amended by Act No.2 of 1962 and it is as a result of this

amendment that the section is in its present form, except a

small part of it which is the result of an amendment by

Maharashtra Act No.39 of 1964. The Court also considered

the amendment in Section 50 and observed: -

The material amendment in this section was obviously

the result of the enactment of section 49-A in the Tenancy

Act by Maharashtra Act No. 2 of 1962. By enactment of

section 49- A the legislature provided for a statutory

transfer of ownership of all land held by a tenant being

land which is not transferred to the tenant under section 46

or which was not purchased by him under section 41 or

section 50 with effect from 1.4.1963, if such land was

cultivated personally by the tenant and if certain

conditions which are set out in section 49-A were satisfied.

Section 49-A operated notwithstanding anything contained in

Section 41 or 46, or any custom, usage, decree, contract or

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grant to the contrary. Having provided for a statutory

transfer of ownership with effect from 1.4.963 in respect of

lands held by a tenant on that day section 50 was made

applicable in respect of tenancies created after 1.4.1963.

Section 50 did not provide only for tenancies which were

created after 1.4.1963 but it also dealt with tenancies

which were restored either under section 7 or 10 or 52 or 28

or 128-A of the Tenancy Act. This section provided that

every tenant holding land under such tenancy, that is to

say, a tenancy which was restored under any one of the

sections referred to in that section, or under a tenancy

created after 1.4.1963, by a landlord not being a landlord

within the meaning of Chapter III-A of the Tenancy Act, if

he was cultivating the land held by him under such tenancy

personally he shall be entitled to purchase that land within

one year from the commencement or from the restoration of

the tenancy as the case may be.

After considering the aforesaid scheme with regard to

Section 50, the Court held that: - Section 50 refers to

section 41 twice. The first reference has been made in

order to indicate the extent of the land which the tenant is

entitled to purchase under section 50 of the Tenancy Act.

The material words of the section minus all the adjectival

clauses would be every tenant holding land under such

tenancy and cultivating it personally shall be entitled to

purchaseso much of such land as he may be entitled to

purchase under section 41 The words such land refers to

the land which he holds under tenancy and which he

cultivates personally. When it is to be decided whether the

tenant is entitled to purchase the entire land which he

holds under tenancy and which he cultivates personally, the

reference to section 41 becomes material. The section says

that the tenant is entitled to purchase only so much land as

he may be entitled to purchase under section 41. Section 41

deals with the right of a tenant to purchase land and this

right is subject to the provisions of section 42 in which

the extent of the land which the tenant may purchase under

section 41 is set out. The words which the tenant may be

entitled to purchase under section 41 has obvious reference

to the restriction in section 42. The reference to section

41 is for a specific purpose, namely, to find out the extent

of land which the tenant is entitled to purchase.

Thereafter the Court referred to Section 42 and

relevant part of Section 43, particularly, (14-A) and

observed:-

This sub-section set out the consequences of the

tenant failing to exercise the right of purchase under

section 41, which, in view of the provisions of section 50,

must also follow where a tenant fails to exercise his right

of purchase under section 50 and it also provides for the

consequences of the purchase of any land becoming

ineffective. The consequences are that the land shall be

deemed to have been surrendered to the landlord and

thereupon the provisions of sub-sections (1) and (2) of

section 21 shall apply to such land as if the land was

surrendered by the tenant under section 20. The consequence

which is set out in this section is that the land is deemed

to have been surrendered to the landlord and after such

surrender an enquiry is required to be made having regard to

the provisions of section 21 (1) and (2) about the extent of

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the land which the landlord is entitled to retain with him.

The Court finally held that the consequences

contemplated by section 43(14-A) of the Tenancy Act would

arise only if the tenant fails to exercise his right to

purchase within one year.

The aforesaid judgment was again referred for

re-consideration by Division Bench in Vikram Yeshwanta and

Others v. Eknath Trimbak Gadekar and Others [1977 Mh.L.J.

520]. The Division Bench held that they were in agreement

with the view taken by the learned Single Judge in the

aforesaid case. The Division Bench reiterated that on a

proper reading of sections 50 and 43(14-A) of the Tenancy

Act, the right to obtain possession will be deemed to have

accrued to the landlord as soon as there is failure on the

part of the tenant to purchase the land within one year as

contemplated by section 20. The aforesaid judgments are

followed in the impugned judgment and order passed by the

Division Bench. Section 50 of the Tenancy Act has been

interpreted in the manner stated above by the High Court

consistently and it would not be proper to disturb the

course of decisions by interpreting that provision

differently after about three decades. This Court in Raj

Narain Pandey and Others v. Sant Prasad Tewari and Others

[(1973) 2 SCC 35] held that in the matter of local statute,

the view taken by the High Court over a number of years

should normally be adhered to and not disturbed. The Court

further observed: -

A different view would not only introduce an element

of uncertainty and confusion, it would also have the effect

of unsettling transactions which might have been entered

into on the faith of those decisions. The doctrine of stare

decisis can be aptly invoked in such a situation. As

observed by Lord Evershed M.R. in the case of Brownsea

Haven Properties v. Poole Corpn., [1958 Ch 574 (CA) :

(1958 1 All ER 205], there is well-established authority for

the view that a decision of long-standing on the basis of

which many persons will in the course of time have arranged

their affairs should not lightly be disturbed by a superior

court not strictly bound itself by the decision.

The aforesaid observations are referred to and relied

upon in Darshan Singh etc. v. Ram Pal Singh and Another

etc. [(1992) Suppl. 1 SCC 191, para 33].

Further, considering the reasons recorded in Govinds

case (supra), we do not think that the impugned order calls

for any interference. Section 50, as quoted above, in terms

provides that (i) in case where tenancy is restored or is

created by a landlord not being a landlord within the

meaning of Chapter III-A i.e. landlords who are or have

been members of the armed forces, tenant would be entitled

to purchase within one year from the commencement or

restoration of the tenancy; (ii) the tenant would be

entitled to purchase so much of such land as he is entitled

to purchase under Section 41 and (iii) to such purchase the

provisions of Sections 41 to 44 shall mutatis mutandis

apply. Therefore, it is apparent that the scheme of Section

50 is different from Section 41. Section 41 talks of

purchase of the land by a tenant and carves out an exception

as provided in sub-section (2) in favour of landlord of

specified categories (minor, widow or person subject to

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physical disability). As against this, under Section 50 no

such exception is carved out in favour of landlord or tenant

who is a minor, a widow or a person subject to any physical

or mental disability. Prescribed time limit for exercise of

such option to purchase the land is only one year. No

provision is made for postponing such right to purchase, if

landlord or tenant is minor, widow or disabled person.

Section 42 provides the extent of land which the tenant may

purchase under Section 41 and limit is prescribed on the

basis of three family holdings. Family holding is defined

under Section 2 (13) to mean a family holding determined

under Section 4 in respect of land situated in that local

area. Section 43 provides the procedure for making an

offer, determination of purchase price and its payment and

consequences of non- payment. Section 44 makes provision

that in case there are encumbrances lawfully subsisting on

the land, the purchase price is to be applied towards the

satisfaction of the encumbrances and the procedure for that

purpose.

As against this, Section 46 provides for deemed

purchase of the lands held by the tenants with effect from

01.4.1961. A specific provision is made in case where the

tenant is a minor, a widow, a serving member of armed forces

or a person subject to any physical disability, the

ownership of the land stands transferred after the period

specified therein. However, similar benefit is not given in

favour of landlord of such category. Thereafter, the

legislature inserted Section 49 (A) by Maharashtra Act 2 of

1961 providing that notwithstanding anything contained in

Sections 41 and 46 from 01.4.1963 the ownership of land held

by a tenant, which is not transferred to the tenant under

Section 46 or which is not purchased by him under Section 41

or Section 50, shall stand transferred to and vest in such

tenant who shall, from the date aforesaid, be deemed to be

the full owner of such land, if such land is cultivated by

him personally. This purchase is subject to a rider as

stated in the proviso that where a landlord has made an

application for possession under Section 38 or 39, then such

purchase shall be, on the date on which application is

finally decided, of the land which he is entitled to retain

possession after such decision. In context of aforesaid

sections, it is apparent that scheme of Section 50 is to see

that either the tenant purchases the land or restores back

the possession of the land to the landlord. It provides

that in case where tenancy is created or restored after

01.4.1963, the tenant is entitled to purchase the land

cultivated by him to the extent mentioned in Section 42

within one year from the date of commencement of the

tenancy. If there is failure to exercise such right,

consequences provided in Section 43 (14A) would follow.

Mr. Uday U. Lalit, learned counsel for the

appellants submitted that Section 50 specifically provides

that provisions of Sections 41 to 44 would mutatis mutandis

apply and, therefore, sub-section (2) of Section 41 would

automatically apply and the right of the tenant to purchase

the land is postponed till period prescribed therein is

over.

This submission, in our view, cannot be accepted

firstly because Section 50 only provides that tenant would

be entitled to purchase so much of such land as he may be

entitled to purchase under Section 41 and to such purchase

the provisions of Sections 41 to 44 would mutatis mutandis

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apply. The concept of mutatis mutandis as understood in

context of Section 50 would be Sections 41 to 44 would be

applicable with necessary changes in the points of detail to

such purchase, that is to say, where a tenant has

exercised his right to purchase the land he can purchase it

to the extent permissible under Section 42. Thereafter,

those parts of Sections which are pertaining to such

purchase are made applicable but there is no question of

postponing such purchase as provided under Section 41(2).

Sub-section (2) can not be made applicable in case of

purchase under Section 50, as it does not pertain to the

purchase but it is with regard to postponement of such

purchase. This is consistent with other provisions,

namely, sections 46 and 49(A). Under Section 46 deemed

purchase is provided from 01.4.1961 except in those cases

where tenant was a minor, a widow, a serving member of armed

forces or a person subject to any physical or mental

disability and in those cases deemed purchase was postponed

till the disability ceased as mentioned therein. No

exception is carved out in favour of landlord who is a

minor, widow or disabled person. Finally Section 49(A) was

added which inter alia provides that notwithstanding

anything contained in Section 41 or 46 ownership of land

held by a tenant being land which is not transferred to the

tenant under Section 46 or which is not purchased by him

under Sections 41 or 50 shall stand transferred to and vest

in such tenant and from that date he shall be the full owner

of such land, if such land is cultivated by him personally.

Exception is carved out in favour of the landlord belonging

to any of the categories specified in sub-section (2) of

Section 38 i.e. in favour of a minor, a widow or a person

subject to any physical or mental disability. No such

exception is carved out under Section 50. Secondly, section

50 specifically provides that every tenant holding land

under such tenancy i.e. tenancy created or restored after

01.4.1963, and cultivating it personally shall be entitled

to purchase within one year from the commencement or as the

case may be, the restoration of the tenancy so much of such

land as he may be entitled to purchase under Section 41.

That period of one year cannot be changed by holding that

sub- section (2) would be applicable and such purchase is

to be postponed for an indefinite period i.e. after two

years from the date of cessation of disability of the

landlord. If this contention is accepted, such purchase

would be postponed for a period of two years after happening

of uncertain eventuality, namely, minor landlord becoming

major, widow ceasing to be owner or in case of disabled

person, till cessation of mental or physical disability.

That is neither the intention of the legislature nor it is

provided. What is provided for is to such purchase

Sections 41 to 44 mutatis mutandis shall apply.

In the result, in our view, the reasons recorded by

the High Court do not call for any interference and

therefore, the appeal requires to be dismissed. The Civil

Appeal is, accordingly, dismissed with no order as to costs.