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TMI Blog2000 (4) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 herein was not a tenant of the land bearing Survey Nos.1/1, 2 acres 28 gunthas and 3/1A, 6 acres 39 gunthas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle 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 entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. (2) Where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands: 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant, 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 submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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