A.M. Khanwilkar, J.
1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Maharashtra Revenue Tribunal at Camp Kolhapur dated 18th December 1987 in Revision No.MRT-KP-62/1985.
2. The land in question was originally Survey No. 107/1, and after consolidation, the same was split up into two gat numbers; namely, Gat Nos. 453 and 454. In the present proceedings, we are concerned with the Gat No. 454, situated at Village Dattawad, Taluka Shirol, District Kolhapur. The land was originally Patilki Watan lands not assigned for remuneration in Kolhapur State. It is common ground that Eksali ordinary tenancy of Patilki Watan land in the Kolhapur State was permissible. Accordingly, the Respondent was inducted as tenant in the suit land sometime in the capacity of tenant on 1st April 1957 i.e. the tillers day as per the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the 'Tenancy Act') and even thereafter i.e. on 1st January 1963, which is the appointed date within the meaning of the Maharashtra Revenue Patels (Abolition of Offices) Act, 1962 (hereinafter referred to as 'the Abolition Act'). It is also not in dispute that the Respondent tenant was occupying and cultivating the suit land in the capacity of tenant also on 30th December 1965, the day on which the landlord deposited the occupancy price with the authorities within the prescribed time provided under the Abolition Act. It is on this premiss, proceedings under Section 32-G of the Tenancy Act were commenced to fix the purchase price in respect of the suit land. The Additional Tahsildar and Agricultural Lands Tribunal, Shirol, by Judgment and Order dated 28th August 1979 has held that the Respondent tenant is deemed to have purchased the suit land after the landlord had paid the occupancy price which resulted in re-grant of the suit land by virtue of provisions of the Abolition Act. the Tahsildar accordingly fixed the purchase price to be paid by the Respondent tenant. Against this decision, the Petitioner landlord carried the matter in appeal before the Deputy Collector, Kolhapur, bearing Appeal No. 183 of 1979. The Appellate Authority has also affirmed the view taken by the Tahsildar and, therefore, dismissed the Appeal preferred by the petitioner. Against that decision, matter was taken in Revision before the Maharashtra Revenue Tribunal and which came to be dismissed by the impugned Judgment and Order. these concurrent decisions are the subject matter of challenge in the present Petition under Article 227 of the Constitution of India.
3. Counsel appearing for the Petitioner has raised only three contentions. He submits that there is nothing on record to suggest that a formal order of re-grant under the provisions of Abolition Act in respect of the suit land has been issued in favour of the landlord; and if that is so, proceedings under Section 32-G of the Tenancy Act were premature. To buttress this plea, reliance has been placed on the decision of our High Court, reported in : 2003(3)BomCR18 in the case of Rangnath D.Vadar v. Bhagatsing v. Kotwal Power of Attorney Girajabai Vithalsing Kotwal. It is next contended that in view of the provisions of Section 8 of the Abolition Act, even assuming that the argument of the other side as found favour with the Courts below that a formal order of re-grant was not necessary and the date on which the landlord deposited the occupancy price i.e. 30th December 1965 was sufficient compliance so as to treat there-grant having been made in favour of the landlord by operation of law under Section 5 of the Abolition Act was to be accepted, even so, it will have to be presumed that the lease in respect of the suit land between the landlord and tenant commenced from 30th December 1965 being the date of re-grant. And in such a case, the provisions of Section 320 of the Tenancy Act were attracted and the tenant having failed to send initiation within the statutory period of one year from such date, has lost his right to purchase the suit land and the purchase has become ineffective in law. Reliance is placed on the decision of this Court, reported in (1972) 75 Bom LR 267 in the case of Bandu Dhanaji Ahire v. Chatursing Parwatrao Thoke in support of the second contention. The last submission advanced on behalf of the Petitioner is that the Petitioner was minor on the relevant date and the land having been transferred in favour of the Petitioner, the purchase stood postponed by virtue of Section 32-F of th4e Tenancy Act, and even for that reason, the case cannot be governed by Section 32-G of the Act.
4. On the other hand, Counsel for the Respondents tenants has adopted the reason given by the Courts below and contends that there is no infirmity in the conclusion reached by the Courts below in declaring that the Respondent tenant is deemed to have purchased the suit land on the relevant date. He submits that reliance placed on the decision referred to above by the Petitioner, is wholly inapposite to the fact situation of the present case.
5. Having considered the rival contentions, to my mind, there is no substance in any of the aforesaid contentions raised on behalf of the petitioner. I shall presently advert to the first contention that, in absence of a formal order of re-grant issued by the authorities in favour of the landlord or in favour of the tenant, provisions of Section 32-G were unavailable. This submission clearly overlooks the provisions of Section 5 of the Abolition Act, which is applicable to the fact situation of the present case. Section 5 of the Act reads thus:
'5. Regrant of Watan land to Watandar:-(1) Watan land resumed under Section 3 shall, on an application therefor (in cases not falling under Sections 6 and 9), be regranted to the watandar of the Watan to which it appertained, on payment by or on behalf of the Watandar to the State Government of the occupancy price equal to twelve times the amount of the full assessment of such land, within the prescribed period and in the prescribed manner; and the Watandar shall thereupon be an occupant within the meaning of the relevant Code in respect of any such land, and shall be primarily liable to pay land revenue to the State Government in accordance with the provisions of that Code and rules relating to unalienated land shall, subject to the provisions of this Act, apply to such land:
Provided that, in respect of any Watan land, which was not assigned under the existing Watan law as remuneration of an officiator, occupancy price equal to six times the amount of the full assessment of such land shall be paid by or on behalf of the Watandar for the re-grant of such land.(2) If there be failure to pay the occupancy price under Sub-section (1), within the prescribed period and in the prescribed manner, the Watandar shall be deemed to be authorised occupying the land, and shall be liable to be summarily evicted therefrom by the Collector in accordance with the provisions of the relevant Code.
(3) The occupancy of the land regranted under Sub-section (1) shall not be transferable or partible by metes and bounds, without the previous sanction of the Collector and except on payment of a sum equal to twenty times the amount of the full assessment of the land, where it is held and used for the purpose of agriculture, and in any other case a sum equal to fifty per cent. of the market value of the land.Provided that, where the occupancy of any land held and used for the purpose of agriculture is made transferable or partible, and such land is subsequently used for any purpose other than agriculture, the holder thereof shall be liable t pay to the Collector the difference between the sum equal to fifty percent of the then market value of the land and the sum already paid.'
6. Besides the above provision, it will be apposite to advert to Rule 3 of the Maharashtra Revenue Patels (Abolition of Offices) Rules, 1963 framed under the provisions of the Abolition Act. Rule 3 prescribes the period for payment of occupancy price to be paid under Section 5(1) of the Act. The same reads thus:-
'Period for payment of occupancy price under Section 5(1).- The period for the payment of the occupancy price under Sub-section (1) of Section 5 or Section 6 shall be (up to and inclusive of the 31st day of July, 1969): Provided that, where a representative Watandar produces a certificate from the Collector to the effect that an application for compensation under Section 12 made by him, disclosing a prima facie valid claim for compensation, is pending, then such occupancy price may be paid within one month from the date of the decision of the application, if no compensation is awarded or the date on which compensation awarded is paid to the Watandar.'
7. On conjoint reading of the above provisions, I have no hesitation in taking the view that as soon as the landlord deposits the amount towards occupancy price within the prescribed period under the above-mentioned rules, there is an automatic regrant of Watan land by virtue of Section 5 of the Act. This is on account of the plenitude of Section 5 which provides that watan land resumed under Section 3 'shall' be regranted to Watandar of the watan lands 'on payment on behalf of the Watandar to the State Government of the occupancy price within the prescribed period.' This view is reinforced by the dictum of our High Court in the case of Prabhakar G.Bhapare v. Hari Narayan (1969) 16 TLR 90. It is held therein that the Petitioner having paid the occupancy price to the Government and on the happening of that event, the Petitioner became the owner of the land. It is further held that what is important is whether the occupancy price is paid and not when it has been paid. It is trite to reproduce the exposition in the said decision, which reads thus:
'It is true that under the proviso to Sub-section (1) of Section 88-C an application for an exemption certificate cannot lie at the instance of a permanent tenant. The Petitioner, however, is no longer a permanent tenant, because his name has been entered in the revenue records, on the abolition of the Inam, as an occupant or a Kabjedar. It is also clear that the Petitioner has paid the occupancy price to the Government and on the happening of the event the Petitioner has become an owner of the land. I am unable to appreciate that no retrospective recognition can be given to the payment of occupancy price. What is important is whether the occupancy price is paid and not, when it has been paid.'
(emphasis supplied)
This observation is obviously in the context of the principles underlying Section 5 of the Abolition Act as is referred to above.
8. Suffice it to observe that in the present case, undisputedly, the landlord has himself paid the occupancy price in respect of the suit land on 30th December 1965 within the specified time. On happening of that event, the landlord being Watandar, by operation of law, the watan land stood regranted in his favour on and from that date itself. Inasmuch as, on payment of the occupancy price by or on behalf of the Watandar in the prescribed period, the tenure is deemed to have been converted into Rayatwari tenure on the same date. Accordingly, I have no hesitation in upholding the view taken by the courts below that in the fact situation of the present case, issuance of the order of regrant of land would only be an administrative or ministerial formality. For, the regrant takes effect immediately on payment of the occupancy price by or on behalf of the Watandar to the State Government within the prescribed period by virtue of Section 5 of the Abolition Act. Indeed, reliance was placed by the Petitioner on the recent decision of our High Court in the case of Rangnath (Supra). However, that was a case where the admitted position was that the landlord had not paid the occupancy price for regrant within the stipulated period, and that the amount was paid by the tenant directly. In other words, the purported payment of the occupancy price was not by or on behalf of the Watandar as such and more so covered or protected by Section 5 of the Abolition Act. This position is clear from the facts of that case narrated in paragraph-6 of the said decision. Obviously, therefore, the Court has proceeded to examine the matter in that perspective and found in paragraph 12 and 13 that unless the land is regranted, after resumption, it would not be possible to invoke the provisions of the tenancy Act. Understood thus, I find no substance in the argument as canvassed by the Petitioner that in absence of a formal order of regrant, the land still continued to vest in the State Government and for which reason proceedings under Section 32-G of the Tenancy Act were premature, having regard to the fact situation of the present case.
9. That takes me to the second contention addressed on behalf of the Petitioner that assuming that the land stood regranted to the landlord Watandar, even then, there has been no compliance of requirements of Section 320 of the tenancy Act. It is argued that the tenant has failed to send an intimation to his landlord and the tribunal, within one year from 30th December 1965 and for which reason the purchase has become ineffective. Even this submission is devoid of merits. As observed earlier, on payment of occupancy price on 30th December 1965, the land stood regranted to the Watandar. That, however, would not mean that on that day a new lease is created in favour of the tenant. The purport of Section 8 of the Abolition Act has been construed by this Hon'ble Court in the unreported decision in shrawan Ganpat Fukate v. Shantabai Patil and Anr. in Special Civil Application No. 531 of 1973 decided on 23rd November 1977. there is yet another recent decision which has considered the purport of Section 8 of the Abolition Act reported in 1992 Mah.L.J. 34 in the case of Kallawwa Shattu Patil and Ors. v. Yellappa Parashram Patil and Anr. The learned Counsel for the Petitioner, however, placed reliance on the observations made in the reported Judgment of Bandu Dhanaji Ahire (Supra). Indeed , in that case, the Court has made certain observations with reference to the purport of Section 8 of the Act. But on a fair reading of that Judgment as a whole, it is seen that the main controversy before that Court was as to when the period of sending intimation to exercise ones right under Section 320 of the Tenancy Act would commence. The point examined in that case was different as referred to above, and in fact, the Court proceeded on the assumption that the provisions of Section 320 of the Tenancy Act were applicable to Watan Lands. The Court was not called upon to address itself as to whether the provisions of Section 320 of the Tenancy Act had any application to the tenancy created prior to the tillers day in respect of Watan lands which was governed by the provisions of Bombay Hereditary Offices Act, 1874. On the other hand, the other two decisions which are referred to above, directly dealt with that aspect of the matter. It is relevant to note that in the case of Shrawan Ganpat Fukate v. Shantabai (Supra), the attention of the Court was invited to the aforesaid reported Judgment of Bandu Dhanji Ahire (Supra), however, the Court proceeded to distinguish that Judgment by answering the issue which falls for our consideration, in the following manner:
'(5) In that case Vaidya, J. had to consider the question of the creation of tenancy within the meaning of Section 32(O) of the tenancy Act. Under Section 32(O) (1) in respect of any tenancy created after the Tillers Day a tenant cultivating personally shall 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. Under Sub-section (1A) a tenant desirous of exercising the right conferred on him under Sub-section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section. Under Sub-section (2) the provisions of Sections 32 to 32H (both inclusive) and of Sections 32P, 32Q and 32R in so far as they may be applicable shall apply to the purchase of the land by a tenant under Sub-section (1). The learned Judge proceeded to decide the case before him on the assumption that Section 32(O) of the Tenancy Act applied to a case where, after abolition of the Inam, the tenancy was deemed to have been created by law. The learned Judge held that the tenancy cannot be held to be created in such a case by the landlord until the landlord had accepted the statutory tenancy or until his contention denying the tenancy is finally and conclusively overruled. In other words, the date of regrant will not in all cases be the relevant date for giving effect to the deeming provision regarding the creating of tenancy.
(6) As the above decision was given on a certain assumption which is not accepted before me and in my opinion rightly, the ratio will be no authority in the present case...............
(7) I have to carefully consider the precise meaning of the words in the provision: 'for the purpose of application of the provisions of the relevant tenancy law in regard to the compulsory purchase of land by a tenant, the lease shall be deemed to have commenced from the date of the regrant of the land under Section 5, or 6 or 9, as the case may be'. The key words are 'the compulsory purchase of land by a tenant'. If we turn to the Bombay Tenancy and Agricultural Lands Act in general and Section 32 to Section 32B in particular, we get a fairly good idea about the scheme under which the tenants of agricultural lands become the purchasers and the prescribed machinery provides for fixation of price of the land. In the whole scheme of purchase of land by tenant, only Section 32 deals with compulsory purchase of land by tenant within the meaning of the proviso to Section 8 of the M.R.P. (Abolition of Offices) Act, 1962. By contrast Section 32 (O) confers only an option on a tenant when the tenancy is created after the Tillers Day to exercise the right to purchase the land. If this is the clear legal position, then the lease should be deemed to have commenced from the date of the regrant and the date of regrant should be read as the Tillers Day instead of the first day of April 1957. Once effect is given to the deeming date in this manner, then all the relevant provisions of the Tenancy Act in general and Sections 32 to 32R in particular will apply to the facts of the case.'
(emphasis supplied).
10. In a later decision in the case of Kallawwa Patil (Supra), once again, this Court was called upon to examine the point in issue and the Court has found that when the Watan land was lawfully leased by the landlord in favour of the tenant much prior to 1st April 1957 and the said lease was subsisting on the appointed day (01.01.1963), the question of creating fresh tenancy by the landlord does not arise. The Court proceeded to observe that since the tenancy was not created after 1st April 1957, the provisions of Section 320 of the tenancy Act will obviously have no application. The Court proceeded to explain the purport of Section 8 of the Abolition Act, and observed thus:
'(7) The Watan land was lawfully leased by the landlords, i.e. the petitioners and Respondent No. 2, in favour of the 1st Respondent-tenant much prior to 1st April 1957 and the said lease was subsisting on the appointed day. The 1st Respondent was lawfully cultivating the land bearing R.S.N.182/4 throughout. Practically all the provisions of the tenancy Act became applicable to the lease forthwith. Merely the date of compulsory purchase and fixation of purchase price were postponed by Statute, i.e. by operation of law up to the date or re-grant. In other words, the provisions for implementation of compulsory purchase of the land contained in Section 32G of the Tenancy Act could not be availed of by the Respondent No. 1 until the date of re-grant of the said land. In my Judgment, the landlords did not create any fresh tenancy in favour of Respondent No. 1 after 1st April 1957 and Section 32-O of the tenancy Act cannot apply to a case where the land was already leased by the landlords in favour of the tenant prior to 1st April 1957 and the said lease was subsisting on 1st April 1957 and it has subsisted throughout. the proviso to Section 8 of the Patels Abolition Act creates a statutory legal fiction for an extremely limited purpose, i.e. for the purpose of fixing of purchase price in respect of statutory purchase. For the said limited purpose, the land is deemed to have been leased from the date of re-grant. It does not follow therefrom that the landlords have created a lease in 1957 from the re-grant. The old lease never came to an end. New contract of lease was never arrived at. Deemed date of commencement of pre-existing lease for the limited purpose set out in the proviso to Section 8 of the Patels Abolition Act does not and cannot bring the case within the ambit of Section 32-O of the Tenancy Act. The condition precedent prescribed by Section 32-O of the Tenancy Act for its applicability is not satisfied in this case. In my judgment, the Tribunal has rightly held that Section 32-O of the Tenancy act is not applicable to this case and the 1st Respondent-tenant is straightway entitled to invoke the provisions of Section 32-G of the Tenancy Act and move the authorities for fixation of purchase price without serving any notice on the landlords in respect of exercise of his right to purchase the said land. The 1st Respondent has repeatedly expressed his intention to make the statutory purchase.'
(emphasis supplied).
11. It is relevant to note that the Courts below have concurrently found that the suit land was originally Patilki Watan Land nor assigned for remuneration in the then Kolhapur State. That finding of fact would bind this Court. It is so, by virtue of Section 88C A of the Tenancy Act which came into force in 1958 with retrospective effect, only certain provisions of the Tenancy Act were inapplicable till the Abolition Act came into force of the appointed date 01.01.1963. Accordingly, applying the dictum of the decision in the case of Kallawwa S. Patil (Supra) as well as Shrawan Ganpat v. Shantabai (Supra), there is no substance in the argument advanced on behalf of the Petitioner that the tenant having failed to exercise his right within the statutory period of one year from the date of regrant i.e. 30th December 1965, the tenant has lost his right to purchase the suit land as contended. As observed earlier, Section 320 of the Tenancy Act has no application to the tenancy created in respect of Watan land prior to 1st April 1957, such as the present case.
12. That takes me to the last contention canvassed on behalf of the Petitioner that the Petitioner was minor on the relevant date and the land having been transferred in his favour, the provisions of Section 32-G were inapplicable; whereas, the matter was governed by Section 32-F of the Tenancy Act. There is no substance even in this submission. It is seen that the Courts below have concurrently found that transfer was not on account of any partition between the family. Whereas, the transfer has been effected only pursuant to Vardi given in 1967; and because of which, the mutation entry No. 5977 came to be effected recording the Petitioner as the owner of the suit land on 1st January 1968. The fact remains that the Patilki Watan was abolished by virtue of the Abolition Act with effect from 1st January 1963. Besides, the amount towards occupancy price was deposited by the landlord with the concerned authorities within the prescribed period on 30th December 1965. On happening of that event, the land stood regranted to the original Watandar, the predecessor-in-title of the Petitioner, on that date itself i.e. 30th December 1965. Since the land stood regranted in favour of the Watandar as aforesaid, by virtue of the provisions of the Tenancy Act which were applicable on that date, the tenant acquired right to purchase the suit land. Besides, as observed earlier, the Courts below have concurrently found that the Petitioner was not the sole landlord on 30th December 1965. In other words, the purported transfer of the suit land in favour of the Petitioner on 1st January 1968 while he was a minor was obviously not in the course of any partition but designed only to change the name of the Kabjedar. The property nevertheless belonged to the joint family on 30th December 1965 when it is deemed to have been purchased by the Respondent Tenant. Understood thus, in such a situation, the provisions of Section 32-F will have no relevance on 30th December 1965, but the tenant has deemed to have purchased the suit land by virtue of Section 32-G of the Act.
13. In this view of the matter, no fault can be found with the view taken by the three Courts below in allowing the proceedings in favour of the Respondent tenant, and determining the purchase price to be paid by the tenant.
14. Hence, this Petition fails. The same is dismissed with costs.