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TMI Blog2006 (9) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of the said provisions having regard to the economic and social conditions of peasants and for ensuring full and efficient use of land for agriculture, it was considered expedient to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturalists, agricultural labourers and artisans in the Province of Bombay and to make provisions for certain other purposes thereinafter appearing. The Tenancy Act came into force with effect from 02.04.1940. Landholder has been defined in Section 2(9) thereof to mean : Landholder means a zamindar, jahagirdar, saranjamdar, inamdar, talukdar, malik or a khot or any person not hereinbefore specified who is a holder of land or who is interested in land, and whom the State Government has declared on account of the extent and value of the land or his interests therein to be a landholder for the purposes of this Act; Agriculturist has been defined in Section 2(2) of the Tenancy Act to mean a person who cultivates land personally. The words to cultivate with grammatical var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if, - (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land; or (iii) the landlord has not terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands : Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or validity of the said order was filed by Respondent. A learned Single Judge by an order dated 22.11.2002 opined that the provisions of Section 32-O were not applicable. The learned Single Judge in arriving at the said decision, followed an earlier judgment of the Bombay High Court in Kallawwa Shattu Patil and Ors. v. Yallappa Parasharam Patil and Anr., (1992) Mh. L J. 34. A Letters Patent Appeal filed thereagainst was dismissed. The Division Bench in arriving at its findings, inter alia, opined that as Appellant did not exercise the remedy of eviction of tenant available under the Bombay Hereditary Offices Act, 1874 (for short, the 1874 Act ) he was neither entitled for re-grant of the land in question under the 1962 Act nor was he entitled to seek possession thereof. Mr. Uday B. Dube, the learned counsel appearing on behalf of Appellant, would submit that the Division Bench committed a serious error in relying upon the provisions of the 1874 Act, which had no application in the facts and circumstances of the present case. It was further submitted that the High Court also committed a manifest error in relying upon Kallawwa Shattu Patil s case (supra) to hold that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se shall be deemed to have commenced from the date of the re-grant of the land under section 5 or 6 or 9, as the case maybe. Explanation.- For the purposes of this section the expression land shall have the same meaning as is assigned to it in the relevant tenancy law. The provisions of both the Acts are required to be construed harmoniously. They have to be construed keeping in view the purport and object, they seek to achieve. Section 32 of the Act confers an absolute right to the tenant. As in 1957 the right of the respondent to purchase the land became a vested right, proviso appended to Section 8 of the 1962 Act could not be read to mean that such right stood divested. Proviso appended to Section 8 refers to the application of the provisions of the relevant tenancy laws as the same does not abrogate a vested right. Proviso, it is well known, has a limited role to play. It may create an exception. It ordinarily does not create a right or takes away a vested or accrued right. Proviso to Section 8 of the 1962 Act, in our considered opinion, does not take away a vested right conferred under the Tenancy Act. By construing both the Acts harmoniously, the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant. It would not be correct to contend that only because Section 31 of the Tenancy Act gives an option to the landlord to terminate the tenancy and take the possession of the land, Section 32-O thereof had been given a retrospective effect. The legal fiction created under Section 32 of the Tenancy Act cannot be given a limited meaning. A legal fiction, as is well known, must be given its full effect. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 - [1951] 2 All ER 587, it was held : If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The said decision has been quoted with approval by this Court in many decisions. (See Ashok ..... 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