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Judgments of Supreme Court of India and High Courts

Udhav Ramchandra Purandare … vs Vithal Govind Randhave … on 17 December, 2019

WP-466-1992
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO. 466 OF 1992

1. Udhav Ramchandra Purandare
Since deceased by his Heirs
and Legal Representatives:-

1-A) Arvind Udhav Purandare
r/o. Jeevadani Dharana,
Arunodaya Nagar, Mulund (East),
Bombay 400 081.

1-B) Bilas Udhav Purandare
R/o. 430-J/3, Vakilwadi,
Nasik.

1-C) Digambar Udhav Purandare
R/o. Bhagya Apte Road,
Deccan Gymkhana, Pune.

1-D) Narendra Purshottam Deshpande
R/o. 430/J/3, Vakilwadi,
Nasik.

1-E) Anant Ramchandra Deshpande
R/o. Chaitanya, Opp. Fire Station,
Aurangabad.

Petitioners No. 1-A , 1-C, 1-D 1-E
through their General Power of
Attorney Holder Petitioner No.1-B. … Petitioners

Versus

1. Vithal Govind Randhave
Since deceased by his Heirs
and Legal Representatives:-

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1-A) Keshav S/o. Vithal Randhavane
Since deceased through his heirs and
Legal Representatives

1A-1) Manik S/o. Keshav Randhavane,
Age : 45 years, Occu. Agril,
R/o. Godhegaon, Tq. Kopargaon,
District : Ahmednagar.

1-B) Yamaji Vithal Randhave

1-C) Mahadu S/o Vitthal Randhavane,
Since deceased through his heirs and
Legal Representatives

1C-1) Balasaheb S/o Mahadu Randhavane
Age : 40 years, Occu. Agril.,

1C-2) Vilas S/o Mahadu Randhavane,
Age : 38 years, Occu. Agril,

1C-3) Laxman S/o Mahadu Randhavane,
Age : 36 years, Occu. Agril.,

1C-4) Smt. Parvatibai W/o Mahadu Randhavane,
Age : 60 years, Occu : Household,

All R/o. Godhegaon, Tq. Kopargaon,
District : Ahmednagar.

1-D) Pundlik Vithal Randhave

1-E) Kisan Vithal Randhave

1-F) Maroti S/o. Vitthal Randhavane
Since deceased through his heirs and
Legal Representatives.

1F-1) Ashok S/o. Maroti Randhavane,
Age : 42 years, Occu. Agril.,
R/o. Godhegaon, Tq. Kopargaon,
District : Ahmednagar.

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2) Ashru (Asaram) Govind Randhave
Since deceased through his Heirs
and legal Representatives : –

2-A) Bandu Sitaram Randhave

2-B) Dilip Ashru Randhave

2-C) Sonubai Sakharam Randhave

3) Shankar Govind Randhavane,
since deceased, through his heirs
and Legal Representatives

3-A) Bhanudas Shankar Randhavane
Age 55 years
(Abated as per Registrar’s order
dated 14.06.2004)

3-B) Uttam Shankar Randhavane,
age 45 years,

3-C) Sakhrabai Maruti Sonwane,
age 46 years,
Respondent Nos.3-A to 3-B
Agriculturist, R/o Godhegaon,
Tq. Kopargaon, Dist. Ahmednagar.

R. No.3-C Occ: Busniess,
R/o. Village Andarsul, Tq. Yeola,
District Nashik.

4) Subhanath Raghu Randhave
Since deceased by his Heirs
and Legal Representatives :-
namely Respondents No.2-A to
2-C above.

All R/o. Godhegaon, Taluka Kopargaon,
Dist. Ahmednagar. … Respondents.

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…..
Mr. V.J. Dixit, Senior Advocate, i/by Mr. S. V. Dixit, Advocate for
the Petitioners.
Mr. Ajinkya Deshmukh Advocate, h/f Mr. A. V. Hon, Advocate for
Respondent Nos. 1-A to 1-E, 2-A to 2-C and 3-B.
…..

CORAM : V. K. JADHAV, J.
RESERVED ON : 18th November, 2019
PRONOUNCED ON : 17th December, 2019

JUDGMENT :-

1. By way of this Writ Petition, the petitioners are challenging

the judgment and order darted 26.09.1991 passed the Maharashtra

Revenue Tribunal, Bombay (M.R.T.) in revision application bearing

No.MRT.AH.I/3/90(Tnc.B.9/90) Pune, by which the M.R.T.

dismissed the said revision application filed by the petitioners and

confirmed the judgment and order passed by the authorities below.

2. Brief facts giving rise to the present Writ Petition are as

follows:

a. The dispute relates to the land bearing survey no. 79 which is

converted into gat no. 238/1 ad-measuring 19 Acres 31 Guntha

situated at village Godhegaon, Taluka Kopargaon, District

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Ahmednagar (hereinafter referred to as “the suit land”). The suit

land is a Deshpande Watan Inam land. The original landlord of the

suit land was one Ramchandra Kacheshwar Deshpande and after

his demise, the name of Udhav Ramchandra Purandare, son of

deceased landlord was entered as the owner of the suit land. The

petitioners 1-A to 1-E are the legal heirs of said Udhav Ramchandra

Purandare. Udhav Ramchandra Purandare was the karta of the

joint family. One Shri Govind Yesu Randhave was cultivating the

suit land. He died on 02.08.1958 leaving behind his sons Vitthal,

Shankar, Raghu and Asaram, who were residing together and were

members of the joint Hindu family. After death of Govind Yesu

Randhave, the suit land was entered in the name of the said joint

family and Vitthal Govind Randhave was shown as the karta of the

joint family. Vitthal Govind Randhave died in the year 1989 and

respondent nos. 1-A to 1-F are his sons and legal representatives.

b. Name of Ramchandra Kacheshwar Deshpande was entered

under the order of Mamlatdar dated 10.08.1952 and Mutation

Entry No. 668 came to be entered in terms of the said order. It

appears that the suit land was re-granted as a new tenure to

Ramchandra Kacheshwar Deshpande and Mutation Entry No. 943

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was certified to that effect. Ramchandra Kacheshwar Deshpande

died on 25.12.1974 leaving behind his sons Udhav, Purushottam

and Anant. It is specific case of the petitioners that the suit land

was Deshpande Inam land and it was re-granted as a new tenure to

Ramchandra Deshpande.

c. Said Udhav Ramchandra Purandare had filed an application

before Agricultural Lands Tribunal (A.L.T.), Kopargaon for

possession of the suit land from the above tenants under the

provisions of the Bombay Tenancy and Agricultural Lands Act,

1948 (for short, ‘Bombay Tenancy Act, 1948′). It is the case of the

petitioners that on 01.04.1957, i.e. the Tillers’ Day, Vitthal Govind,

Shankar Govind, Raghu Govind and Asaram Govind were holding

the land 62 Acres 23 Guntha exceeding the ceiling limit. The

petitioners therefore claim that the suit land is Deshpande Watan

Inam land and it is not a service Inam land. After the enactment of

the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950

(for short, ‘the Abolition Act, 1950’), all the watans covered under

the said Act came to be abolished and all the rights to hold the

office and liabilities of rendering services to the said watans were

extinguished. It is the case of the petitioners that in terms of the

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provisions of Section 8 of the Abolition Act, 1950, the provisions of

the Bombay Tenancy Act, 1948 are made applicable. In view of the

provisions of Sub-section (6) of Section 32G of the Bombay

Tenancy Act, 1948, the rights of the tenants to purchase the land

remained unaffected even if the land is re-granted to the original

holder on condition that it was not transferable. According to the

petitioners, even if the land is re-granted on new tenure or old

tenure, the right of the tenant under Section 32G of the Bombay

Tenancy Act, 1948 is unaffected. Said Udhav Ramchandra

Purandare had approached the A.L.T., Kopargaon for recovery of

possession of the suit land against the tenants. It is the case of the

petitioners that there is no question of postponement of the Tillers’

Day even if the land is re-granted on old tenure or new tenure.

d. By order dated 18.02.1974, the A.L.T., Kopargaon held that

the respondents-tenants are entitled to purchase the land from the

date when it was re-granted on the old tenure. Being aggrieved by

the same, said Udhav Ramchandra Purandare had preferred

Tenancy Appeal No. 213 of 1984 before the Sub-Divisional Officer,

Sangamner and the learned Sub-Divisional Officer, Sangamner, by

order dated 29.09.1989 dismissed the said Appeal. Being aggrieved

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by the same, said Udhav Ramchandra Purandare, who then

deceased, represented by his legal heirs, preferred revision

application before the M.R.T., Bombay and by the judgment and

order dated 26.09.1991, the MRT, Bombay has dismissed the

revision. Hence this Writ Petition.

3. Learned senior counsel Mr. Dixit submits that conversion of

the land from new tenure to old tenure after payment of price etc.

is a mere formality and will not affect the rights and liabilities of

the parties after the enactment of the Abolition Act, 1950. In view

of the same, the Tillers’ Day i.e. 01.04.1957 will remain the same

even if the land is old tenure or new tenure. Section 8 of the

Abolition Act, 1950 speaks about the same. There is no question of

postponement of the Tillers’ Day. Learned senior counsel submits

that on 28.01.1960, the suit land was converted into new tenure in

the name of Ramchandra Deshpande after payment of re-grant

amount by him. The said order was passed by the then Mamlatdar

on 21.01.1960 in file no. 9-133 of 1960 and after the necessary

orders, Mutation Entry 943 came to be effected in respect of the

suit land. Learned senior counsel submits that it is clear that the

land was re-granted in the year 1960 and it was not in the year

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1976 as observed by the courts below. Learned senior counsel

submits that the conclusion drawn by the A.L.T., Kopargaon that

the land was re-granted because of mere application filed by the

tenant on 13.04.1976 is improper and incorrect. The suit land was

already re-granted in favour of the landlord in the year 1960.

Hence, the observations of the A.L.T. are erroneous. Learned senior

counsel submits that the A.L.T., Kopargaon has committed a grave

error in applying the provisions of Section 88 of the Bombay

Tenancy Act, 1948. The said provisions are applicable to the land

leased by the Government. The suit land is a watan land alienated

to the holder for personal use. It is not a land allotted for rendering

service as it is the case of the Police Patil or the Kotwal. Learned

senior counsel submits that even if it is presumed that it was a

service watan, then also it was abolished in the year 1950 before

the Tillers’ Day and as such, Section 8 of the Abolition Act, 1950 is

applicable. Learned senior counsel submits that the explanation to

Section 88 was added by amendment Act no. Bom. 63 of 1958. In

the instant case, the watan was abolished long before the said

amendment and therefore, the provisions of Section 88 of the

Bombay Tenancy Act, 1948 cannot be made applicable to the facts

and circumstances of the present case. The said provision is

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applicable to the existing watan lands and not to the watan lands

where the watans were already abolished. Thus, the suit land

cannot be deemed as a Government leased land and the provisions

of Section 88 of the Bombay Tenancy Act, 1948 are totally

inapplicable. Learned senior counsel submits that it is clear from

the 7/12 extract that the land holding of the respondents bearing

survey nos. 83, 65, 48, 6, 3, 414, 418, 412, 417 totally ad-

measuring 62 Acres and 23 Guntha land on Tillers’ Day and as such

they were holding more than 48 Acres of the land which was

exceeding the ceiling limits. Therefore, they are not entitled to

purchase the suit land. In terms of Section 5 of the Bombay

Tenancy Act, 1948, the ceiling area is 48 Acres for jirayat land and

24 Acres for seasonally irrigated land and 12 Acres for perennially

irrigated land. In terms of the provisions of Section 32A of the

Bombay Tenancy Act, 1948, the tenant is not entitled to purchase

the land when his holding is in excess to the ceiling limits. It is

clear from the documents that the holdings of the respondents-

tenants was 62 Acres and 23 Guntha in addition to the suit land on

the Tillers’ Day. It was more than the ceiling limits. Learned senior

counsel submits that there is a general presumption of joint family.

The joint and undivided family is normal condition. Thus, the

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presumption is that the members of the family are living in union

unless the contrary is established. The initial burden therefore rests

on the person to prove that there was a partition of the joint family

property before the Tillers’ Day. Witness Yamaji Vitthal had stated

in his cross-examination that there was partition after the death of

the grandfather. But he could not state as to when his grandfather

died and also the area of the family holding on the Tillers’ Day. The

other witnesses have stated about the oral partition. Thus, none of

the witnesses is in a position to state the time when the partition

was effected and the shares allotted to each sharer. There is no

documentary evidence placed before the courts below to

substantiate the claim of partition. However, before the appellate

court, the respondent has produced the extract of Mutation Entry

No. 941 dated 23.11.1959 to show that there was partition in the

family of respondent. The appellate court has accepted the said

argument though the said Mutation Entry was never produced

before the A.L.T., Kopargaon. Mutation Entry No. 941 cannot be

relied as proof of partition on two grounds; firstly, if the tenancy is

to be partitioned, then notice to the landlord is necessary and

secondly, there is no list of the survey numbers mentioned in

Mutation Entry No. 941 and further, there is no reference of the

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suit land. Further, said Yamaji Randhavane has instituted Regular

Civil Suit No. 646 of 1971 in the court of Civil Judge, Junior

Division, Kopargaon against Vitthal Govind and others for partition

of the agricultural land which includes the suit land bearing gat no.

238/1. The said suit was subsequently compromised in the year

1972. It is thus clear that the family was undivided till the year

1971 and therefore, it was a joint family property. Learned senior

counsel submits that the even if it is presumed for the sake of

discussion that the land was partitioned as reflected from the

Mutation Entry No. 941 somewhere on 23.11.1959, holding of the

tenant on the Tillers’ Day i.e. on 01.04.1957 is to be seen. In the

instant case, as on the Tillers’ Day, holding of the tenant was more

than the ceiling limits. In view of the same, the tenant does not

become a deemed purchaser on the Tillers’ Day in respect of the

suit land. Thus, the observations made by learned Sub-Divisional

Officer are not correct. Learned Sub-Divisional Officer erred in

holding that the tenant was holding the land below ceiling limits

on the Tillers’ Day. The impugned orders are thus liable to be

quashed and set aside.

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4. Learned senior counsel, in order to substantiate his

contentions, placed his reliance on the following cases:

1. SectionShankar Savanta Bandagar v. Sonabai Rau Kamalakar
others, reported in 1980 Bom.C.R. 233.

2. SectionSadashiv Dada Patil v. Purushottam Onkar Patil (D)
by LRs, reported in 2007 (1) Mh.L.J. 149.

5. Learned counsel for the respondents submits that in terms of

Section 4 of the Abolition Act, 1950, a watan land resumed under

the provisions of the Act shall be re-granted to the holder of the

watan on payment of the occupancy price and for the period as

detailed in Section 4 of the Abolition Act, 1950 from the date of

coming into force of the Act and the holder shall be deemed to be

an occupant in respect of the said land and primarily liable to pay

land revenue to the State of Maharashtra in accordance with the

provisions of the Code and the rules made thereunder. Learned

counsel submits that in terms of Section 8 of the Abolition Act,

1950, if any watan land has been lawfully leased and such lease is

subsisting on the appointed day, the provisions of the Bombay

Tenancy Act, 1948 shall apply to the said lease and the rights and

liabilities of the holder of such land and his tenant or tenants shall,

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subject to the provisions of this Act, be governed by the provisions

of the said Act. Learned counsel submits that so far as the new

tenure on payment of the occupancy price is concerned, the same is

equal to 12 times of the amount of full assessment of such land

within five years from the date of the coming into force of the

Abolition Act,1950 and the holder shall be deemed to be occupant

within the meaning of the Code in respect of such land. Learned

counsel submits that however, in terms of Sub-section (2)(a) of

Section 4 of the Abolition Act, 1950, on or after the

commencement of the Act, such occupancy on new and impartible

tenure would be occupant Class II and after the commencement

date, the same may be converted into old tenure i.e. occupant

Class- I by the occupant and after such conversion, such land shall

be held by the occupant as occupant Class I in accordance with the

provisions of the Code. Learned counsel submits that in view of the

specific provision, there is a markable difference between the new

tenure and the old tenure. It is clear that if it is old tenure, the land

is released from the management by the Government for all

purposes. Learned counsel submits that in terms of the provisions

of Section 88 of the Bombay Tenancy Act, 1948, most particularly

the proviso to Sub-section (1), the date on which the land is

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released from the management by the Government, all the

provisions of the Bombay Tenancy Act, 1948 shall apply.

6. Learned counsel for the respondent submits that in terms of

the said provisions, the A.L.T., Kopargaon rightly held that the

tenant will be entitled to purchase the land from the date it is re-

granted on old tenure. Further, the A.L.T., Kopargaon has also

referred the application filed by the tenant dated 03.07.1970 made

to the Prant Officer, Sangamner requesting him the re-grant.

However, the Prant Officer has passed the order that unless the

tenancy case is determined, the land cannot be re-granted. The

learned A.L.T. has therefore rightly held that the tenant has already

exercised his right of purchase. Learned A.L.T. has also considered

the total holding of respondent Vitthal Govind, considering the

same as jirayat land which is not disputed, and held that even if the

suit land is added in the area, the same does not exceed the ceiling

limit. The Sub-Divisional Officer has also considered the

documentary evidence and observed that the suit property was

given to Ramchandra Deshpande on new tenure. He has also

observed that in terms of Section 63-A, the amount of Rs.6,638/-

has been recovered and as such, the occupant got the right of re-

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grant on old tenure. In terms of the provisions of Section 88 of the

Bombay Tenancy Act, 1948, the A.L.T. has rightly passed the order

and accordingly, the Sub-Divisional Officer has dismissed the

appeal. Learned counsel submits that the authorities below

including the M.R.T. observed that the suit land which is

Deshpande Inam land was re-granted on the old tenure by the

Prant Officer, Sangamner by his order dated 13.04.1976. It was

originally granted on new tenure basis as per Mutation Entry No.

943 and subsequently it was re-granted on old tenure basis after

observing due formalities in that behalf. There is no dispute about

tenancy over the suit land between the parties. It is rightly

observed by the authorities below and confirmed by the tribunal

that it is only the said date, i.e. 13.04.1976, the tenant would be

entitled to purchase the land. Learned counsel submits that there

are concurrent findings recorded by the authorities below

confirmed by the M.R.T. and as such no interference is warranted

while exercising writ jurisdiction. The Writ Petition is liable to be

dismissed.

7. Learned counsel for the respondents, in order to substantiate

his contentions, placed his reliance on the following cases:

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1. SectionShri Pandurang Dnyanoba Lad v. Shri Dada Rama
Methe others, reported in 1976 (2) SCC 236.

2. SectionPradeeprao @ Virgonda Shivgonda Patil v. Sidappa
Girappa Hemgire since deceased through his heirs and
LRs. Ginnappa Sidappa Hemgire and others, reported
in 2004 BCI 47.

8. One Ramchandra Kacheshwar Deshpande was the landlord of

the suit land survey no. 79 ad-measuring 19 Acres 31 Guntha

situated at village Godhegaon, Taluka Kopargaon, District

Ahmednagar. Deceased Udhav Purandare was the son of landlord

Ramchandra Deshpande. The suit land was leased out to Govind

Randhave sometime in the year 1949 under registered rent note

and since then, he was cultivating the suit land. The mutation was

also made in his name and he was recorded as the tenant in the

record of rights. Said Govind Randhave died somewhere in the year

1958 leaving behind his sons i.e. the present opponent nos. 1, 2

and 3 and others as the heirs. After the death of Govind Randhave,

Vitthal’s name came to be recorded as heir alongwith his other

brothers and they were cultivating their respective share. It is also

the case of the tenants that partition came to be effected in respect

of the suit property sometime in the year 1959 and it was duly

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recorded as per Mutation Entry No. 941 and two brothers were

cultivating their respective shares separately since then.

Ramchandra Deshpande died somewhere in the year 1974 and the

names of his heirs were brought on record in respect of the suit

property. The said Deshpande Inam land was recorded on old

tenure basis by the Prant Officer, Sangamner by his order dated

13.04.1976. It appears from the record that it was originally

granted on new tenure basis as per Mutation Entry No. 943 but

subsequently it came to be re-granted on old tenure basis.

9. In terms of the provisions of the Abolition Act, 1950, all the

pargana watans and Kulkarni watans shall be deemed to have been

abolished. Section 8 of the Abolition Act, 1950 is reproduced

hereinbelow:

“8. Application of Bombay Tenancy and Agricultural
Lands Act, 1948. –

If any watan land has been lawfully leased and such lease
is subsisting on the appointed day, the provisions of the
Bombay Tenancy and Agricultural Lands Act, 1948, shall
apply to the said lease and the rights and liabilities of the
holder of such land and his tenant or tenants shall,
subject to the provisions of this Act, be governed by the

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provisions of the said Act.

Explanation.- for the purposes of this section the
expression ‘land’ shall have the same meaning as is
assigned to it in the Bombay Tenancy and Agricultural
Lands Act, 1948.”

10. In terms of the provisions of Section 8 of the Abolition Act,

1950, if any such watan land has been lawfully leased and such

lease is subsisting on the appointed day, the provisions of the

Bombay Tenancy Act, 1948 shall apply to the said lease and the

rights and liabilities of the holder of such land and his tenant or

tenants shall, subject to the provisions of this Act, be governed by

the provisions of the Bombay Tenancy Act, 1948. It is not disputed

that as on the appointed day of the Abolition Act, 1950, the said

Deshpande watan land (suit land) has been lawfully leased and

subsisting on the said date.

11. Section 88 of the Bombay Tenancy Act, 1948 is relevant for

the present discussion and the same is reproduced herein below:

“88. Exemption to Government lands and certain other
lands
[1] Save as otherwise provided in sub-section (2),

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nothing in the foregoing provisions of this Act shall
apply,-

(a) to lands belonging to, or held on lease from, the
Government;

(b) to any area which the State Government may, from
time to time, by notification in the Official Gazette,
specify as being reserved for non-agricultural or
industrial development;

(c) to an estate or land taken under the management of
the Court of Wards or of a Government Officer
appointed in his official capacity as a guardian under
the Guardians and SectionWards Act, 1890.

(d) to an estate or land taken under management by
the State Government under Chapter IV or Sectionsection 65
except as provided in the said Chapter IV or Sectionsection 65,
as the case may be, and in Sectionsections 66, Section80A, Section82, Section83, Section84,
Section85, Section86 and Section87:

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-

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(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 the right to purchase the land under
section 32 (or under section 33C in the case of an
excluded tenant); and

(c) the provisions of Sectionsections 31 to Section31D, both inclusive
(or Sectionsections 33A and Section33B in the case of a certificated
landlord) and Sectionsections 32 to Section32R, (both inclusive) (or
Sectionsections 33A and Section33C 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

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(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, 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 Sectionsections 32 to
Section32R shall, so far as may be applicable, apply to the
right of the permanent tenant to purchase the land.

Explanation.- For the purposes of clause (a) of sub-
section (1) of this section land held as inam or watan
for service useful to Government and assigned as
remuneration to the person actually performing such
service for the time being under section 23 of the
Bombay Hereditary Offices Act, 1874, or any other law
for the time being in force shall be deemed to be land
belonging to Government.

(2) If any land held on lease from Government or any
part thereof,-

(i) is held at the commencement of the Bombay
Tenancy and Agricultural Lands (Amendment) Act,

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1960, by a person under a sub-lease from the lessee and
is cultivated personally by such person, or

(ii) is sub-let after the commencement of the Bombay
Tenancy and Agricultural Lands (Amendment) Act,
1960, by the lessee to any person for cultivation.
and such sub-letting of the land or part thereof is
authorised in accordance with the terms of the lease
then all the provisions of this Act except Sectionsections 32 to
Section32R (both inclusive) and Sectionsection 43 shall,
notwithstanding anything contained in such lease,
apply to the land, or as the case may be, the part
thereof, held under such sub-lease, as if the person
holding it under such sub-lease were a tenant within
the meaning of Sectionsection 4 of this Act and the lessee were
the landlord:

Provided that in the case of a sub-lease subsisting on
the date of the commencement of the Bombay Tenancy
and Agricultural Lands (Amendment) Act, 1960, the
lessee shall be entitled to terminate the sub-lease under
Sectionsection 31 within one year form such date and the
provisions of Sectionsections 31 to Section31D (both inclusive) shall
so far as may be applicable, apply to the termination of
the sub-lease.

Explanation.- In sub-section (2) of this section,
references to a lessee include a reference to a person to

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whom the entire interest in the land held on lease or in
any part thereof has been transferred or assigned.”

12. On careful reading of the provisions of Section 88,

particularly the first and the second proviso to Sub-section (1) and

the explanation thereto are relevant for the present discussion. In

terms of the first proviso, from the date on which the land is

released from the management, all the provisions of the Bombay

Tenancy Act, 1948 shall apply thereto.

13. In terms of the provisions of sub-section (1)(a) of Section 88

of the Bombay Tenancy Act, 1948, save as otherwise provided in

sub-section (2), nothing in the foregoing provisions of the Bombay

Tenancy Act, 1948 shall apply to the lands belonging to or held on

lease from, the Government. In view of the explanation (1), for the

purposes of clause (a) of sub-section (1) of this Section, the land

held as inam or watan for service useful to Government and

assigned as remuneration to the person actually performing such

service for the time being under Section 23 of the Bombay

Hereditary Offices Act, 1874, shall be deemed to be land belonging

to Government. In the backdrop of these provisions, the first and

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second proviso to sub-section (1) of Section 88 are relevant. In

terms of the first proviso, from the date on which the land is

released from the management, all the foregoing provisions of the

Bombay Tenancy Act, 1948 shall apply thereto. In terms of clause

(a) of the second proviso to sub-section (1), in case of a permanent

tenancy, a 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 the land is released from the

management.

14. It is not disputed that respondents-tenants were holding the

land on lease created before the occupancy rights were re-granted

to the petitioners on the abolition of the Inam. In terms of the

provisions of Section 88 of the Bombay Tenancy Act, 1948 as

above, the said Deshpande Inam land was re-granted on old tenure

basis by the Prant Officer, Sangamner by his order dated

13.04.1976. In view of the provisions of Section 88, particularly the

explanation to sub-section (1), if a land as on the Tillers’ Day is

deemed to be a land belonging to the Government for the purpose

of clause (a) of sub-section (1), the provisions of Section 32 of the

Bombay Tenancy Act, 1948 were inapplicable and in terms of the

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proviso (2) the provisions of Section 32 and all the provisions of

the Bombay Tenancy Act, 1948 are applicable from the date on

which the land is released from the management. In terms of

Section 4 of the Abolition Act, 1950, if a watan land resumed under

the provisions of the Act is re-granted to the holder of the watan on

payment of occupancy price, the holder shall be deemed to be the

occupant within the meaning of the Code in respect of such land

and shall primarily liable to pay the land revenue to the State

Government in accordance with the provisions of the Code and the

rules thereunder. In terms of Sections 29 to 31 of the Maharashtra

Land Revenue Code, 1966, a watan land resumed under the

provisions of the Abolition Act, 1950, even if re-granted to the

holder of the watan, the holder shall be deemed to be an occupant

within the meaning of Section 29(3) as Occupant Class II. So far as

the occupant Class I is concerned, it consists of a person who hold

unalienated land in perpetuity and without any restrictions on the

right to transfer. In view of the same, if the said Inam land after its

abolition was re-granted on old tenure basis on 13.04.1976, it is in

terms of the proviso (1) to Section 88 of the Bombay Tenancy Act,

1948 that the land is released from the management and from such

date, i.e. 13.04.1976 in this case, all the provisions of the Bombay

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Tenancy Act, 1948 shall apply thereto in term of the clause (a)(i)

of the second proviso. In view of the same, I find no fault in the

orders passed by the authorities below which are confirmed by the

M.R.T.

15. In terms of Section 32(a) of the Bombay Tenancy Act, 1948,

the tenants shall be deemed to have purchased the land under

Section 32 up to ceiling area only. In the instant case, both the

authorities below recorded the finding of fact by referring Mutation

Entry no. 941 to the effect that the land holding of

respondent/tenant does not exceed the ceiling limits. Learned

senior counsel has not brought to my notice any document/s to

indicate that the land holding of the respondent/tenant does

exceed the ceiling limits. Thus, except bare words that the land

holding of the respondent/tenant exceeds the ceiling limits, there

are no documents to substantiate the said contention. Furthermore,

Mutation Entry No. 941 sufficiently demonstrates that the land

holding of the respondent/tenant does not exceed the ceiling

limits.

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16. In the case of SectionSadashiv Dada Patil v. Purushottam Onkar

Patil (D) by LRs, (supra), relied upon by learned senior counsel for

the petitioners, in para 17 of the judgment, the Supreme Court has

made the following observations:

“17. First day of April, 1957 was declared to be the
“tillers day’. If a person remained a tenant on the said
date, by reason of the legal fiction created under
Section 32 of the Tenancy Act, he would be deemed to
have purchased the land from his landlord, free from
all encumbrances subsisting thereon on the said day.
Section 32-G thereof, on the other hand, casts an
obligation on the Tribunal. The Tribunal is required to
publish or cause to be published a public notice in the
prescribed form calling upon the tenants who under
Section 32 of the Tenancy Act are deemed to have
purchased the land. Section 32-O contains a non-
obstante clause providing notwithstanding any
agreement or usage to the contrary, a tenant cultivating
personally would be entitled within one year from the
commencement of such tenancy to purchase from the
landlord the land held by him or such part thereof as
will raise the holding of the tenant to the ceiling area.”

However, the Supreme Court had no occasion to consider the

provisions of Section 88 of the Bombay Tenancy Act, 1948.

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17. In the case of SectionShankar Savanta Bandagar v. Sonabai Rau

Kamalakar others (supra), relied upon by the learned senior

counsel, the said petition before the Division Bench of this Court

relates to the tenancy rights of a tenant of sanadi inam land. In

para 8 and 9, the Division Bench of this Court has made the

following observations:

“8. Now, one thing which must be pointed out at the
outset is that the date of statutory ownership or what is
described in Sectionsection 32 as the tillers day is made
determinable by the statute itself. Therefore, unless
there is some provision in the Act which positively
provides for any postponement of that date in the case
of lands which were sanadi inam lands and ware
resumed by the State Government consequent upon the
Abolition Act, it will not be permissible for the Court to
fix the date of regrant as the date on which the
statutory rights of ownership vest in the tenant. It is
obvious that the argument advanced on behalf of the
petitioner is intended to establish that prior to 23rd
July, 1971 the provisions of the Act did not apply to
sanadi inam land and since they became applicable
only on 23rd July, 1971, the lease in favour of Sitaram
being after 1st April, 1957, in this case the provisions of
Sectionsection 32-O would be applicable and since Sitaram has

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not given any intimation in order to exercise a right to
purchase, the purchase should be deemed to have
become ineffective.

9. In our view, this contention is based on a
complete misconception of the provisions of the
Tenancy Act. The foundation of the argument on behalf
of the petitioner is section 88(1)(a) of the Tenancy Act
which makes inapplicable the provisions of the Tenancy
Act to certain kind of lands Sectionsection 88(1)(a) provides
that save as otherwise provided in sub-section (2)
nothing in the foregoing provisions of the Tenancy Act
shall apply to lands belonging to, or held on lease from,
the Government. We are not concerned with sub-
section (2) of Sectionsection 88(1)(a). Relying on these
provisions an argument is advanced that though the
land is granted as the sanadi inam to the petitioner, the
land belonged to the Government and, therefore, the
provisions of the Tenancy Act could not apply till the
date on which the Abolition Act came into force
because prior to that, land belonged to the Government
According to the petitioner, even thereafter till 23rd
July, 1971 when the order of regrant was made, the
land continued to belong to the Government. Now if
one looks at the scheme of the Tenancy Act, it is clear
that the legislature did not intend that inam land shall
be excluded from the operation of the provisions of the
Tenancy Act. The Explanation to Sectionsection 88 is of some

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importance in this context. The Explanation reads as
follows :

“For the purposes of Clause (a) of sub-section (1) of
this section land held as inam or watan for service
useful to Government and assigned as remuneration to
the person actually performing such service for the time
being under section 23 of the Bombay Hereditary
Offices Act, 1874, or any other law for the time being in
force shall be deemed to be land belonging to
Government.”

The effect of this Explanation is that only land held as
inam or watan for service useful to Government and
assigned as remuneration under any law is alone
treated as land belonging to the Government. It is
important to note that a fiction has been introduced in
this Explanation. But for that fiction even such land
which was given as watan for service useful to
Government would not have fallen within the
provisions of Sectionsection 88(1)(a). This is a clear indication
that the lands which were granted as sanadi inam lands
were not treated as lands belonging to the Government.
It is well-known that such lands are treated as alienated
lands and for all intents and purposes the inamdar or
the holder of the sanadi inam was the owner of the
land.”

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18. In the case cited above, it is held that the effect of

explanation to Section 88 of the Bombay Tenancy Act, 1948

cannot be extended to the lands granted as sanadi inam lands and

therefore, the said lands cannot be treated as lands belonging to

the Government. The Division Bench has considered that such

lands are treated as alienated lands and for all intent and purpose,

the inamdar or the holder of the sanadi inam was the owner of the

land. In the instant case, the facts are altogether different and thus

the ratio laid down in the aforesaid case cannot be made applicable

to the facts and circumstances of the present case.

19. In view of the above, I do not find any substance in this Writ

petition. Hence, I proceed to pass the following order:

ORDER

I. The Writ Petition is hereby dismissed.

II. Rule discharged.

( V. K. JADHAV, J.)

vre/

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