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TMI Blog2001 (10) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose. 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alogy 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. 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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