# MADHARAO RAJESHlVAR DESHPANDE v. SHANKER SlNGH &: OllS. February 2-4, 1970

- **Citation:** [1970] 3 S.C.R. 809
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Case number:** Civil Appeal No. 2393 of 1966
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madharao-rajeshlvar-deshpande-v-shanker-slngh-olls-february-2-4-1970-4968
- **Pages:** 6

## Headnote

Bombay Tenancy and. Agricultural Land (Vidharbha and Kutch Area)
Act 99 of 1958 as amended by Act 2 of 1962, ss. 41, 42, 43 and 46Scooe of.
The appellant was the owner of certain land and the first respondent
was the protected lessee. In 1963, the appellant filed " petition for possession of the land on, the 2:round that the first respondent failed to exercise his right of purchase under s. 41(1) of the Bombay Tenancy and
Agricultural Land (Vidharbha and Kutch Area) Act, 1958. The authorities under the Act heJd that the tenant had become a statutory own.er from
April I, 1961, under s. 46 (I) and dismissed the petition. In the High
Court the appellant raised for the first time, the contention that under
s. 42(c) of the Act the appellant should have been left an area not Jess
than one family holding (that is about 26 acres), thats. 46(1) was applicable only when the condition in s. 42(c)
was satisfied, that
under
s. 43(14A), which was introduced into the Act by Act 2 of 1962. the first
respondent should take steps to exercise his right oi purchase, and since
the first 1 respondent did not do so. he must be deemed to have surrenderf.d
the land to the appellant under s. 43(14A). The High Court did not
accept the contention.
In appeal to this Court,
HELD : (!) The appellant was not entitled to raise any contention
based on s. 42(c) as no foundation was laid for doing so in the plead·
ings or at any prior state till the matter reached the High Court. (814
A-B]
(2) The ope.ration of s. 46(1) was not affected by
the subsequent
insertion of sub--s. 14A in s. 43, as it did not have any retrospective operation.
Therefore, the first respondent had become a statutory o\vner of
the land in his tenancy under s. 46(1), on April I, 1961, even though
he di<l not take any steps to purchase that land from the appellant. [814
B-C]

## Text

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809
MADHARAO RAJESHlVAR DESHPANDE
v.
SHANKER SlNGH &: OllS.
February 2-4, 1970
[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
Bombay Tenancy and. Agricultural Land (Vidharbha and Kutch Area)
Act 99 of 1958 as amended by Act 2 of 1962, ss. 41, 42, 43 and 46Scooe of.
The appellant was the owner of certain land and the first respondent
was the protected lessee. In 1963, the appellant filed " petition for possession of the land on, the 2:round that the first respondent failed to exercise his right of purchase under s. 41(1) of the Bombay Tenancy and
Agricultural Land (Vidharbha and Kutch Area) Act, 1958. The authorities under the Act heJd that the tenant had become a statutory own.er from
April I, 1961, under s. 46 (I) and dismissed the petition. In the High
Court the appellant raised for the first time, the contention that under
s. 42(c) of the Act the appellant should have been left an area not Jess
than one family holding (that is about 26 acres), thats. 46(1) was applicable only when the condition in s. 42(c)
was satisfied, that
under
s. 43(14A), which was introduced into the Act by Act 2 of 1962. the first
respondent should take steps to exercise his right oi purchase, and since
the first 1 respondent did not do so. he must be deemed to have surrenderf.d
the land to the appellant under s. 43(14A). The High Court did not
accept the contention.
In appeal to this Court,
HELD : (!) The appellant was not entitled to raise any contention
based on s. 42(c) as no foundation was laid for doing so in the plead·
ings or at any prior state till the matter reached the High Court. (814
A-B]
(2) The ope.ration of s. 46(1) was not affected by
the subsequent
insertion of sub--s. 14A in s. 43, as it did not have any retrospective operation.
Therefore, the first respondent had become a statutory o\vner of
the land in his tenancy under s. 46(1), on April I, 1961, even though
he di<l not take any steps to purchase that land from the appellant. [814
B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2393 of
1966.
Appeal by special leave from the judgment and order dated
March 1, 1966 of the Bombay High Court, Nagpur Bench in
Special Civil Application No. 190 of 1965.
G. L. Sanghi and A. G. Ratnaparkhi, for the appellant.
D. V. Patel, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judgment
of the Bombay High Court dismissing a petition filed by the appellant under Art. 227 of the Constitution.
LIOS:ipCl(NP)70-7
•
810
SUPREME COURT REPORTS
[1970) 3 S.C.R.
The dispute relates to survey No. 284 having an area of 11
acres and 6 gurithas in Mouza Paras, Taluk Balapur, District Akola.
The appellant is the owner of this field while respondent no. 1 is
the protected lessee. The case is governed by the Bombay Tenancy
and Agricultural Land Act (Vidhatbha & Kutch area) Act 99 of·
1958 which came into force on December 30, 1958, hereinafter
called "the Act". , In August 1963 ·the appellant filed an application before the Tahsildar under ss. 43(14A) and 36(2) of the Act
for possession of the aforesaid field on the ground that respondent
No. 1 had failed to exercise his right of purchase in respect of that
field under the provisions of the Act. He must, therefore, be deemed to have surrendered the same to the appellant. The Tahsildar
sustained the defence of respondent No. l that he had become an
owner of the said field on April 1, 1961 under s. 46 of the Act
and dismissed. the application. The order of the Tahsildar was confirmed by the Deputy Collector (Tenancy Appeals) and the Maharashtra Revenue Tribunal to whom the matter was taken in appeal
and revision respectively. It may be mentioned that originally the
appellant had filed applications against three of his tenants including respondent No. 1 and the tribunal dismissed by one order all
the three revision petition preferred against the orders made in the
three cases. The appellant, however, filed a petition under Art.
227 of the Constitution challenging the order made in the case of
respondent No. l alone.
The Act as originally enacted was amended by Act 2 of 1962
which came into force on March 1, 1962. Chapter ill related to
termination of tenancies by landlords and special rights of tenants.
Sections 38, 39 and 39A gave rights to different categories of landlords to terminate the tenancies of their tenants for borla fide personal cultivation.
A ceiling was fixed with regard to the area of
which possession could be claimed as also the minimum area of
land which must be left with the tenant. The tenants were given
the right to purchase land in the second part of Chapter ill. · Section 41 ( l) provided that subject to the provisions of ss. 42 to 44 a
tenant other than an occupancy tenant would be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. In case of a landlord who was under
some kind of disability, namely, if the landlord was a minor or a
widow or a serving member of the armed forces or a person subject
to physical or mental disability the right to purchase land of such
landlord accrued to the tenant after the expiry of two years from
a date prescribed in the case of each category of such landlord.
Section 42 as it stood on April 1, 1961 was as follows:
"Extent of land which tenant may purchase under section 41.-The right of a tenant under s. 41 to purchase
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MADHARAO v. SHANKER (Grover, J.)
811
from his landlord the land held by him as a tenant shall
be subject to the fo1Jowing conditions, namely :-
(a) if the tenant does not hold and cultivate personally any land, as a tenure-holder, the purchase of the
land by him shall be liniited to the extent of three family
holdings;
(b) if the tenant holds and 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 helg by him as a tenure-holder
to the extent of thfee family holdings;
(c) the extent of the land remaining with the landlord after the purchase of the land by the tenant whether to_ cultivate personally or otherwise shall not be
less than one family holding".
Clause (c) was deleted by Act 2 of 1962 which came into force
on _March l, 1962.
Section 43 prescribes the procedure which
was to be followed by a tenant in the matter of purchase of the
holding. Section 46(1) made a categorical provision that notwithstanding anything in Chapter ill or any law for the time being in
force or any custom, usage, decree, contract or grant to the contrary the ownership of all lands held by tenants which they were
entitled to purchase from their landlord under any of the provisions
of Chapter ill was to stand transferred to and vest in such tenants
with effect from April 1, 1961 and from such date the tenants
were to be deemed to be the full owners of the lands, The first
proviso contained provisions relating to the tenants who were under
a disability and the second proviso laid down that where any proceeding under ss. 19, 20, 21, 36 or 38 was pending on the date
specified in sub-s. (1) in respect of any land the transfer of ownership of such land was to take effect on the date on which the proceeding was finally decided and if the tenant retained possession
of the land in accordance with the decision in such proceedings ..
Under sub-s. (2) the tenant'continued to be liable to pay to the
landlord the rent of_ the land the ownership of which stood transferred to him until the amount of the purchase price payable by
him to the landlord had been determined under s. 48.
Ce~in amendme~ts which wei:: made by Act 2 of 1962 may
be noticed. Sub-section l 4A was mserted in s. 43 which was in
these terms :
"H a tenant fails to exercise his right of purchase
H
under section 41- in respect of any land or the purchase of
any land becomes ineffective, tile land shall be deemed
to have been surrendered to tile landlord, and thereupon
the provisions of sub-sections (1) and (2) of section 21
812
SUPREME COURT REPORTS
(1970} 3 S.C.R.
and Chapter v11 shall apply to such land as if the land
was surrendered by the tenant under section 20".
Section 49 A provided for transfer of ownership of lands to the
tenants with effect from first day of April 1963 where the land had
already not been transferred by operation of s. 46 or where the
tenant had not purchased it under s. 41 or s. 50.
Before the Maharashtra Revenue Tribunal the position taken
up on behalf of the appellant was that the tenant had. failed to
exercise his ri~ht of purchase in respect of the field in his possession
and therefore he should be deemed to have surrendered the same to
the appellant by virtue.of the provisions of s. 43(14A) of the Act.
The tribunal went into the scheme of the Act and also considered
the Ceiling on Holdings Act which was in force in the Vidarbha
Region.
After referring to the relevant provisions of the Act it
was observed that the final stage for transfer of ownership of land
to the tenant was provided by ss. 46 and 49A. The effect' of the
Tenancy Act and the Ceiling on the Holdings Act, according to the
Tribunal, was that no person was entitled to hold an area in excess
of three family holdings. Under the Act the maximum area which
he could have resumed would have been three family holdings and
that also if he could prove that he bona fide required it for personal
cultivation and was mainly dependent on the income of that land
for his maintenance. The tenant was give.n the right to purchase
the land in his ienancy from the landlord in accordance withs. 43.
If he did not take steps to acquire the same he still became a statutory owner of that land by virtue of s. 46 with effect from April 1,
1961. Therefore even if the tenant did not apply for purchase of
laud held by him he became an owner with effect from April 1,
1961 subject to any other conditions as were laid down in the provisions of the Act. This vesting of ownership in the tenant was not
affected by subsequent enactment of sub-s. (14-A) by Act 2 of
1962 which did not have retrospective operanon.
Thus, according to the tribunal, even if respondent No. 1 did
not apply under the relevant provisions of the Act for purchasing
the land comprising his tenancy he became an owner thereof by
virtue of the provisions of s. 46(1) and no tenancy rights were left
which could be deemed to have been surrendered under s. 14A
which came into existence after April I, 1961. Although the provisions of s. 42(c), as they stood before the amendment effected by
Act 2 of 1962, were not pressed at any prior stage a contention was
raised before the High Court that in accordance therewith the appellant should have been left an area not less than one family holding on independent calculation with respect to the land held by
each. tenant.
The J:Iigh Court repelled this contention by saying
that 1t was not possible to accept such a construction of s. 42(c).
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MADHARAO v. SHANKER (Grover, /.)
813
As there was no proceeding pending for termination of the tenancy
of respondent No. 1 the conclusion of the tribunal that respondent
No. 1 had become a statutory owner on Aprill, 1961 was upheld.
Before us an attempt was made on behalf of the appellant to
reiterate the contention ·based on the provisions of s. 42(c) as it
existed before the amendment made by Act 2 of 1962. It was urged
that one of the most important conditions of the right to purchase
was that the extent of the land remaining with the landlord after the
purchase by the tenant (whether to cultivate personally or otherwise) shall not be less than one family holding. On December 30,
1958 the appellant had no land whatever with him in his possession. He was, therefore, entitled to retain an area to the extent
of one family holding which came to 26 acres. By virtue of the
provisions of s. 42(c) respondent No. 1 was not entitled to purchase the entire land comprising his tenancy as under s. 46 ( 1) the
oWllership of land stood transferred to the tenant only if he was
entitled to purchase from the landlord such land. As this comfjtion
was not fulfilled in the present case owing to the provisions of s.
42(c) it followed that on April 1, 1961 the ownership of the. land
in question was not transferred to respondent No. 1 under s. 46(1).
This situation continued upto March 1, 1962 when the amending
Act came iinto force. Sub-section (14-A) of s. 43 was one of the
new provisions inserted by the Amending Act. Respondenr No, 1,
could, therefore, exercise his right of purchase only under s. 41
read with s. 43(14-A).
As he failed to exercise his right under
those provisions the entire land in his tenancy must be deemed to
have been surrendered to the landlord, namely, the appellant before
April l, 1963 which was the relevant date for the purpose of the
operation ef s. 49-A.
We are 1mable to accept any of the contentions raised on behalf
of the appellant. So far as the effect of s. 42(c), as it stood before
its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which
was filed by the appellant was not founded on any facts or pleas
relevant to s. 42( c). The contention as raised leads to unusual and
strange results.
If the appellant was entitled to an area of 26
acres it is difficult to see how he could choose only respondent No.
1 and leave out the other tenants for the purpose of retaining land
not less than one family holding. It is significant that the appejlant
had filed apJ>lications on similar line5 against two other tenants
also. After the decision of the tribunl!-1 had been given he did μot
pursue the matter further which means that he abandoned his claim
with regard to the lands in their tenancies. Respondent No. 1 has
a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satis_fy the requirements of s.
814
SUPREME COURT REPORTS
[1970J 3 s.c.R.
42(c) by demanding the entire area from respondent No. 1 alone.
We, however, do not wish to express any final opinion on the scope
and ambit of s. 42(c) because we are satisfied that the appl!'.llant
was not entitled to raise any ~ontention based on the aforesaid
provision as no foundation was laid for doing so in the pleadings
or at any prior stage except before the High Court. We concur
in the view of the tribunal that respondent No. 1 became a statutory owner of the land in his tenancy by virtue of s. 46(1) of the
Act with effect from April 1, 1961 even though he did not take
steps to purchase that land from the appellant under s. 43. The
operation of s. 46(1) could not be affected by the subsequent insertion of sub-s. (14-A) in s. 43 which did not have retrospective
operation.
The appeal therefore fails and it is dismissed. But in the circumstances there will be no order as to costs.
V.P.S.
Appeal dismissed.
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