LexMADHARAO RAJESHWAR DESHPANDE versus SHANKER SLNGH & ORS.
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A B c D E F G H 809 MADHARAO RAJESHlVAR DESHPANDE v. SHANKER SlNGH &: OllS. February 2-4, 1970 [J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] Bombay Tenancy and. Agricultural Land (Vidharbha and Kutch Area) Act 99 of 1958 as amended by Act 2 of 1962, ss. 41, 42, 43 and 46- Scooe of. The appellant was the owner of certain land and the first respondent was the protected lessee. In 1963, the appellant filed " petition for pos- session of the land on, the 2:round that the first respondent failed to exer- cise his right of purchase under s. 41(1) of the Bombay Tenancy and Agricultural Land (Vidharbha and Kutch Area) Act, 1958. The autho- rities under the Act heJd that the tenant had become a statutory own.er from April I, 1961, under s. 46 (I) and dismissed the petition. In the High Court the appellant raised for the first time, the contention that under s. 42(c) of the Act the appellant should have been left an area not Jess than one family holding (that is about 26 acres), thats. 46(1) was appli- cable only when the condition in s. 42(c) was satisfied, that under s. 43(14A), which was introduced into the Act by Act 2 of 1962. the first respondent should take steps to exercise his right oi purchase, and since the first 1 respondent did not do so. he must be deemed to have surrenderf.d the land to the appellant under s. 43(14A). The High Court did not accept the contention. In appeal to this Court, HELD : (!) The appellant was not entitled to raise any contention based on s. 42(c) as no foundation was laid for doing so in the plead· ings or at any prior state till the matter reached the High Court. (814 A-B] (2) The ope.ration of s. 46(1) was not affected by the subsequent insertion of sub--s. 14A in s. 43, as it did not have any retrospective ope- ration. Therefore, the first respondent had become a statutory o\vner of the land in his tenancy under s. 46(1), on April I, 1961, even though he di<l not take any steps to purchase that land from the appellant. [814 B-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2393 of 1966. Appeal by special leave from the judgment and order dated March 1, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 190 of 1965. G. L. Sanghi and A. G. Ratnaparkhi, for the appellant. D. V. Patel, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Bombay High Court dismissing a petition filed by the appel- lant under Art. 227 of the Constitution. LIOS:ipCl(NP)70-7 • 810 SUPREME COURT REPORTS [1970) 3 S.C.R. The dispute relates to survey No. 284 having an area of 11 acres and 6 gurithas in Mouza Paras, Taluk Balapur, District Akola. The appellant is the owner of this field while respondent no. 1 is the protected lessee. The case is governed by the Bombay Tenancy and Agricultural Land Act (Vidhatbha & Kutch area) Act 99 of· 1958 which came into force on December 30, 1958, hereinafter called "the Act". , In August 1963 ·the appellant filed an applica- tion before the Tahsildar under ss. 43(14A) and 36(2) of the Act for possession of the aforesaid field on the ground that respondent No. 1 had failed to exercise his right of purchase in respect of that field under the provisions of the Act. He must, therefore, be deem- ed to have surrendered the same to the appellant. The Tahsildar sustained the defence of respondent No. l that he had become an owner of the said field on April 1, 1961 under s. 46 of the Act and dismissed. the application. The order of the Tahsildar was con- firmed by the Deputy Collector (Tenancy Appeals) and the Maha- rashtra Revenue Tribunal to whom the matter was taken in appeal and revision respectively. It may be mentioned that originally the appellant had filed applications against three of his tenants includ- ing respondent No. 1 and the tribunal dismissed by one order all the three revision petition preferred against the orders made in the three cases. The appellant, however, filed a petition under Art. 227 of the Constitution challenging the order made in the case of respondent No. l alone. The Act as originally enacted was amended by Act 2 of 1962 which came into force on March 1, 1962. Chapter ill related to termination of tenancies by landlords and special rights of tenants. Sections 38, 39 and 39A gave rights to different categories of land- lords to terminate the tenancies of their tenant
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